Re GWD
[2011] QMHC 16
•30 September 2011
MENTAL HEALTH COURT
CITATION:
Re GWD [2011] QMHC 16
PARTIES:
REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVES
PROCEEDING NO:
0126/11
DELIVERED ON:
30 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
1, 2, 29,30 September 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr JM Lawrence
Dr EN McVieFINDINGS AND ORDER:
1. That at the time of the alleged offence the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld);
2. That the defendant be detained, pursuant to a forensic order, to an Authorised Mental Health Service.
3. That limited community treatment is approved at the discretion of the authorised psychiatrist, on the conditions set out in the submission of the Director of Mental Health
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with murder – where evidence the defendant was suffering from severe depression and suicidal ideation at the time of the alleged offence – where the defendant has no memory of the brief period of time in which the offence allegedly took place – whether the defendant was suffering from unsoundness of mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the relevant time
COUNSEL:
Ms S Ryan for the Defendant
Mr J Tate for the Director of Mental Health
Mr G Cash for the Director of Public ProsecutionsSOLICITORS:
Robertson O’Gorman Solicitors for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)ANN LYONS J:
This reference
[1] On 15 February 2010 a student, aged 12, died as a result of stab wounds inflicted with a kitchen knife during an incident in the toilet block at the school he attended with the applicant, GWD.
[2] The applicant was 13 years old at the time of the stabbing. He was suffering from severe depression and suicidal ideation. He took a kitchen knife from his home to school on 15 February 2010 in order to kill himself in the boys’ toilets. The student saw the applicant raise the knife to his throat and intervened saying “[GWD] don’t do that”.
[3] The autopsy results indicate that the student sustained a single stab wound to the front of the chest with two separate internal wounds and a single stab wound to the back. He died from acute shock due to external and internal blood loss. There are two parallel incised wounds to the web of his right hand consistent with having been inflicted by grabbing a sharp knife.
[4] The applicant sustained two lacerations to the neck and a laceration to the abdomen.
[5] There is no evidence of any previous conflict between the boys.
[6] The applicant has been charged with the murder of the student.
[7] The applicant’s legal representatives, in a reference filed on 17 May 2011 have referred the question of his mental condition at the time of the alleged commission of the offence to this Court. He is currently 15 years old and has been detained in the Brisbane Youth Detention Centre since his arrest on the day of the incident.
The Medical Reports
[8] Reports have been prepared by three adolescent and child psychiatrists namely Professor Barry Nurcombe, Dr Michael Beech and Dr Scott Harden. All three psychiatrists gave oral evidence to the Court and attended the entire proceedings to listen to each other’s evidence. The psychiatrists also prepared a document during the course of the proceedings which outlined the areas of agreement and the areas of disagreement with respect to their clinical findings and diagnoses.
[9] Dr Ian Curtis, psychiatrist also saw the applicant on 19 February 2010 in relation to a proposed application for bail. A formal report was not prepared by Dr Curtis but his notes of the interview were provided to the reporting psychiatrists. The psychiatrists essentially considered that an objective assessment of those notes was that Dr Curtis, who is not a child psychiatrist, did not manage to successfully engage the applicant in the interview. As Dr Beech noted[1]:
“My own reading of Dr Curtis’s notes was that there didn’t seem to be a lot of clinical engagement, if you like, with [the applicant] as he took the history. Now that’s a common experience in forensic report writing, but its important, particularly in [the applicant]’s case, because he’s a 13 year old boy who requires, I think, a different interview style to a 30 year old man.”
[1]Transcript p 107 ll 10-30.
[10] Having read Dr Curtis’ notes I concur with the conclusion that there was a lack of clinical engagement and I have not placed any reliance on those notes.
[11] The applicant’s current treating psychiatrist Dr Steven Stathis also prepared a report and gave oral evidence. He also attended to monitor the applicant’s mental condition throughout the hearing and provide psychiatric support.
[12] Dr Lucille Douglas, a neuro-psychologist did extensive testing and prepared a report. Dr Douglas also gave extensive evidence explaining the basis for the testing and the significance of the results at the hearing.
[13] The factual background leading up to the stabbing and the circumstances immediately before the stabbing have been explored by the three reporting psychiatrists and Dr Douglas. All doctors agree that the applicant has given a consistent account to them of what he can remember immediately before and after the stabbing and his account has been substantiated in many respects.
[14] There is no doubt however that he cannot remember the precise circumstances of the actual stabbing other than the student reaching for the knife.
[15] The background facts which are uncontroversial and the events of the day to the extent that he can recall them are set out below.
The factual background
[16] The applicant’s father died when he was four and he has been raised by his single mother who is now 39 and his 76 year old grandmother. The applicant’s home life was stressful due to conflict between his mother and grandmother predominantly in relation to the grandmother’s heavy drinking. There is no doubt his grandmother had a drinking problem and her “binges” appeared to increase in 2010. The applicant told Professor Nurcombe that when his grandmother had been drinking she acted “weird” and that “I feel bad, sad, sick of her being drunk”.
[17] The applicant’s grandmother impressed on him the need to do well and get a good job so he could take care of his mother. His grandmother was considered to be somewhat obsessed with his school work and became over-involved, sending the school letters demanding to know his progress. This tendency to stress was longstanding and increased when the applicant entered grade nine, she would continuously nag him and his mother.
[18] The applicant has significant learning problems as the testing of Dr Douglas subsequently revealed. He was struggling at school and his difficulties had increased on entering secondary school despite his best efforts. Dr Douglas’ testing indicated that in many respects he had specific and severe deficits in his capacity to understand verbal information and that his ability to hear and read is at the level of a child in grade 4.
[19] He was however a very good tennis player and was good at arithmetic. There is no doubt he presented in a way which disguised his actual ability.
[20] The applicant was friendly with a group of boys at school and would sit with them at lunch time listening to them talk and would sometimes contribute. He was bullied in primary school by a boy who was later expelled. He was quite close to the student during grades 5 and 6 but their friendship “faded away” upon attending high school. All reporting psychiatrists indicated that there was no evidence of malice towards the student and no history of any conflict.
The circumstances of the offence
[21] All reporting psychiatrists indicate that there is no doubt that during the twelve months prior to the alleged offence the applicant became increasingly desperate, depressed and hopeless about his school performance and job prospects. He began ruminating and felt bad and unhappy and “blamed himself”. He was not able to tell anyone about it and kept it to himself as he did not want to worry his mother. The applicant told all the psychiatrists that this feeling kept building up and that he had trouble getting to sleep and then started waking early. He would lie in bed and think about suicide and how he could harm himself. He increased his tennis playing to try and alleviate the stress and distract himself but things did not improve.
[22] His mother and grandmother confirmed that for a ‘good while’ he was “really withdrawn and quiet”. He never confided in them and his mother said “he just kept it bottled up”.
[23] It is clear that the applicant’s thinking became such that he believed he should kill himself. Dr Beech noted “he believed that his family would be better off if he was dead because the arguments would stop. He said he thought at times he heard his own voice, in his head, saying, ‘I must die’. It would appear that over the weekend prior to the stabbing the thoughts of self harm increased. He decided that on Monday he would take the knife to school to cut his throat so he would not have to face the mounting stress at home. He decided to do it at school so that his mother and grandmother would not find him. He said his good byes to his mother the night before and she recalls him being particularly affectionate.
[24] The next morning he took the knife and put it in his school bag. He caught the same bus as the student and nothing unusual happened on the trip which took about a half hour. He had downloaded a video onto his phone and when he arrived at school he wanted to show it to the student. In order to view the video they went into a cubicle in the toilet block as he wasn’t supposed to have a phone at school and the video was a bit risqué. After he showed the student the video, which he was apparently not particularly fussed about, the student left the cubicle.
[25] The applicant states that the video was an effort to try and not think about killing himself. After the student left however he started thinking about it again. He took the knife out of the front of his bag and put it up to his neck. The student however had left his school bag behind and he came back into the cubicle. The applicant’s account to Professor Nurcombe was explained by Professor Nurcombe as follows:
“[The student] returned unexpectedly and, seeing [the applicant] with the knife at his throat, intervened by shouting and seized [the applicant]’s wrist. [The applicant] claims amnesia for a brief period of time. He next remembers seeing [the student] on the floor moaning. Appalled at what he had done, [the applicant] put the knife in the pocket of his shorts and ran wildly out of the school.”
[26] Dr Beech obtained this account:
“[The student] returned and pushed the door open. He saw [the applicant] with his knife to his neck and [the student] ‘quickly put his hand on my wrist...you probably won’t believe this, the next thing I can remember is...I had the knife in my hand...and I looked down and there was blood on it...and I saw [the student] on the ground...bleeding.”
[27] The applicant told Dr Harden that when he finished watching the video the distraction finished and he went “back into trying to kill myself.” Dr Harden’s report records the following:
“He said the toilet door was in retrospect not properly shut but he was alone in the cubicle and he ‘pulled the knife out of my bag, put it up to my neck, he [the student] came back in and saw me, he said stop don’t do that, he grabbed my wrist’. He said that he felt that [the student] probably grabbed his right hand while he was standing on his left side.
He said that the next thing he recalls is having the knife in his hand (his right hand) with blood all over it and standing at the door of the cubicle ‘I heard [the student] saying why did you do that, stop [GWD], why did you do that’. He said that [the student] was lying on the ground in the hallway of the toilet area. He said ‘then I freaked out, why the fuck did I do that.’”
[28] The applicant cannot recall any fighting, any struggle or any emotion. Police records indicate the stabbing occurred at approximately 8.45 am.
[29] In terms of whether the applicant could have stabbed the student in anger as a result of being thwarted in his attempt to kill himself none of the reporting psychiatrists supported such an inference. In response to questions from Mr Cash, Professor Nurcombe stated:
“Yes. I - I thought of that as one of the hypotheses that this was just a wilful boy who would not brook somebody stopping him and his intent to kill himself. I don't - there's nothing in this boy's background that suggests that he was such an antisocial or demanding, sort of, person.
In fact, this is a very quiet boy. He's hardly noticed, right. He causes no trouble at school. He may sometimes be – have arguments at home, but they are minor. This is a boy who gets bullied, this is not a bully. In the past in his life he's been bullied. This is not a boy who'd - who would brook no opposition to his wanting to kill himself, and so callously and coldly kills this other person. I don't believe that.”
[30] Professor Nurcombe considers that the amnesia “could be a manifestation of peri-traumatic dissociation. On the other hand it could be caused by the suppression of upsetting memories.” This view is endorsed by the other doctors.
The subsequent events
[31] The applicant told Dr Harden that after he saw the student on the floor:
“he stood back in the toilet cubicle and ‘cut my neck twice really quick, stab myself in the gut, so I bleed to death, then I ran out’.”
[32] He gave a similar account to all the doctors and told them he just ran. He says he was found by police and he “threw the knife in the trailer”.
[33] The applicant was taken to Redcliffe Hospital at 9.46 am where he was initially seen by Dr Dobinson who recorded that he had lacerations to the thorax and abdomen. He also recorded:
“-Stated that he wanted to kill himself because he had nothing to live for because he was bad at school and he would probably get a bad job and be miserable.
-Stated that he brought the knife to school to kill himself because he didn’t want his mum to see.
-Stated when asked that the other child was his friend and he regrets what has happened but was not specific about exactly what he did to he other child.
-Stated that his ‘body took over’.”
[34] A Child and Youth Mental Health Assessment was done mid afternoon on 15 February 2010 at the Redcliffe Hospital by Dr Giarraputo. That assessment indicated an “adjustment disorder’ and records a “Two year history of dysthymic symptoms characterised by chronic low mood, some social withdrawal and deterioration in function related to school work”. He also notes “Guilt ruminations regarding responsibility towards and caring for mother”.
[35] That assessment also noted that the applicant had receptive difficulties and indicated that the examiners had to repeat or reword some questions. The assessment records that he “did not know what happened” and that his “body took control of him”.
[36] At that assessment it was considered that he “poses a significant risk to himself for self harm and suicide”.
[37] Since the event all psychiatrists agree that the applicant has continued to suffer from a depressive condition which culminated in an attempted suicide in April 2011 at the Brisbane Youth Detention Centre. The applicant is considered to be a low risk of violent reoffending but a high risk of suicide.
Dr Douglas’ Report
[38] Dr Douglas stated in her report that the applicant’s cognitive testing revealed the presence of notably impoverished intellectual abilities, in particular she noted a specific and severe deficit in his capacity to understand verbal information (whether in written format or spoken), as well as slowed speed of information processing and poor retention of information in memory over time. By way of contrast, his ability to read (pronounce individual words correctly), spell, and perform mathematical analyses, was notably intact and even 1-2 grades ahead of his peers.
[39] Dr Douglas considered that it is likely that this has contributed to his falling further and further behind his peers, as such intact educational skills would prove highly misleading, especially as he struggles to understand what he hears and reads (this ability is at that of a child in Grade 4, i.e. approximately 9-10 years old). The Report also noted:
“Psychosocial testing has revealed the presence of notable anxiety and depressive based symtomotology, which is not inconsistent with the stated nature of the offence and with observations by others that this is a young man with an extremely negative view of himself who has made attempts to self-harm.”
[40] In terms of fitness for trial Dr Douglas stated that whilst she considered that the applicant was fit for trial that was on the proviso that the Court would need to take into account that his ability to understand the legal process is that of a much younger individual and he would need assistance to ensure he does comprehend and follow the lines of questioning put before him and put before other witnesses.
[41] Dr Douglas also indicated that the applicant did not dispute the fact that he stabbed the student but reported that he cannot recall the actual stabbing itself, but that he can recall the student trying to stop him from killing himself by reaching for the knife and then he can recall him lying on the ground injured.”
Was the applicant suffering from a mental disease at the time of the commission of the alleged offence?
Diagnosis
[42] Two reporting psychiatrists namely Professor Nurcombe and Dr Harden consider that the applicant is suffering from a natural mental infirmity namely Mild Mental Retardation with observable mental deficits. Dr Beech notes Dr Douglas’ report and test results but considers that he performs well above the testing levels and is not satisfied that he would be within the category of Mild Mental Retardation. On the basis of Dr Douglas’ testing it is clear that there is a large body of evidence which would support such a diagnosis.
[43] The ultimate question of course is what is the relevance of the presence of this natural mental infirmity?
[44] It is clear that the natural mental infirmity would not of itself have been sufficient to have deprived him of one of the capacities and Professor Nurcombe clearly stated that the natural mental impairment would not by itself be sufficient in this case to have deprived the applicant of any of the three capacities. He stated however:
“Its relevance is the effect it has upon the mental state and the degree, I suppose, it feeds into that mental state and aggravates that; is that the right way to approach it?-- Yes.
When he is depressed, suicidally depressed, the capacity to think of alternatives as a way of coping is much impaired.”
[45] Leaving the issue of the presence of a natural mental infirmity to one side there is in any event no doubt that the three reporting psychiatrists and the assisting psychiatrists all consider that the applicant was suffering from a disease of the mind at the time of the stabbing due to the existence of either an Adjustment Disorder with depressed mood or a Dysthymic Disorder.
[46] In terms of a formal diagnosis Dr Beech and Dr Harden considered that the applicant was suffering from Adjustment Disorder with depressed mood at the time of the alleged offence. That diagnosis was supported by both assisting psychiatrists. Dr Stathis also agrees with this diagnosis.
[47] Professor Nurcombe however considered that the true diagnosis was one of Dysthymic Disorder. He indicated however that there was considerable difficulty with the classification systems when it came to a diagnosis of mental illness in children and that in the end the difference in diagnosis made no difference. He explained the difficulty in response to questioning from Mr Tate:
“And in terms of the mental disease what would you be indicating there?‑‑ Well I believe he had and still has dysthymic disorder.
How does that differ from the other disorders that Dr Beech discussed yesterday?‑‑ Yes.
Just so that we've got clarity‑‑‑‑‑?‑‑ Yes.
‑‑‑‑‑in terminology?‑‑ You have to appreciate that these categorical disorders were imposed upon children by adult psychiatrists and by adult psychiatric committee. I don't believe they are particularly relevant but if I must stick to the formal classification, which was produced by a bunch of guys sitting around a table, then I would distinguish between adjustment disorder with depressed mood, dysthymic disorder, major depressive disorder. Major depressive disorder does occur in adolescents, it's quite uncommon, although it's often over-diagnosed. The question is, does this boy have an adjustment disorder or a more serious dysthymic disorder. Adjustment disorder relates to the reaction to a stressor, usually passes within six months of the alleviation of the stressor, but can become chronic if the stressor does not - is not lifted. Dysthymic disorder is a more serious disorder but not so serious as major depressive disorder. Frankly, I don't think the difference - there is really a true difference between adjustment disorder with depressed mood and dysthymic disorder. In my experience, all depressive disorders in this age group, and remember we're dealing with somebody with a mental age of a nine-year old child, we're dealing with a child, from a psychiatric and cognitive point of view, that all depressive disorders, there are a mixture, a rather amorphous mixture of anxiety and sadness”
Professor Nurcombe’s Report
[48] Professor Nurcombe provided a report dated 26 June 2011. He considered that at the time of the killing the applicant was suffering a severe depressive disorder. Professor Nurcombe considered that at the time of the alleged offence the applicant was extremely anxious and he experienced pervasive depression with intense suicidal ideation. He also diagnosed the applicant as suffering from mild mental retardation with observable intellectual deficits.
[49] In Professor Nurcombe’s opinion the applicant had suffered from that condition for approximately 12 months and its intensity reached a peak during the month prior to the index offence. Several days prior to the alleged offence the applicant had determined to take his own life. He said to him “I hate it. I felt real bad. I was sick in the stomach. I’d had enough, enough of life (at which point Professor Nurcombe noted he looked depressed) I’d had enough. I thought of suicide.”
Dr Beech’s Reports
[50] Dr Beech in his reports dated 6 March 2011, 31 March 2011, 11 April 2011 and 24 August 2011 also noted the highly dysfunctional home life for the applicant with his grandmother’s drinking, conflict between his mother and grandmother, the applicant’s concerns for his grandmother’s health, as well as persistent nagging and demands. Dr Beech noted that this occurred in the context of the applicant’s own difficulties with his school work language difficulties and an anxious temperament.
[51] It is in this setting that Dr Beech indicates the applicant developed a depressed mood with sadness, guilty ruminations and eventually suicidal ideation. In reaction to the stresses at home Dr Beech opines that the applicant suffered from an adjustment disorder with depressed and anxious mood. He stated in his 24 August 2011 report:
“From a developmental perspective, I would offer that most depressive conditions in children are reactive in nature but occur in the context of some inherent vulnerability and are compounded by stressful environmental factors. With the onset of an adjustment disorder there is an increased vulnerability to further depressive episodes. Often the trajectory is that subsequent depressive episodes are triggered by lesser stressors. Ultimately depressed episodes may then evolve spontaneously. There is a pathway therefore whereby an Adjustment Disorder in childhood ultimately evolves in to a Recurrent Depressive Disorder in Adulthood.”
Dr Harden’s Report
[52] Dr Harden prepared a report dated 13 August 2011. Dr Harden considers that the applicant was suffering from an adjustment disorder with depressed mood at the time of the incident. He stated that he considered whether he might have been suffering from a major depressive episode and he thought that this was a significant possibility. However he considered that because his recovery of symptoms within the detention centre was more rapid than one would expect in a major depressive episode, he considered that an adjustment disorder with a depressed mood was the more likely diagnosis.
[53] Dr Harden also considered whether he could be suffering from a dysthymic disorder as had been diagnosed by Professor Nurcombe, but he considered that his mood state has continued to fluctuate significantly without the long periods of persistence seen in dysthymia. Dr Harden noted however that:
“The caveat on the interpretation of mental state is that there is no question he suffers from a significant receptive and expressive language disorder. This affects his communication with other people and his expression of symptoms. He tends not to report emotional symptoms to others except when overwhelmed and frequently conceals them, possibly because of embarrassment at his communication difficulties and possibly because he does not wish to burden others, particularly family. There is a significant possibility that his symptoms are in fact more severe than his account and he has tended to minimise these. In which case the major depressive and chronic dysthymia diagnoses are more likely.”
Dr Stathis
[54] Dr Steven Stathis prepared a report on the applicant’s progress in the Brisbane Youth Detention centre. He was also present throughout the two day hearing and he gave oral evidence. He stated that having listened to all of the evidence his opinion is, from a clinical viewpoint, “that the applicant was suffering and indeed has suffered whilst in the Brisbane Youth Detention Centre from an adjustment disorder with depressed mood.” He discussed the fact that the applicant’s mood improved after admission to the centre but noted that such an outcome was not unexpected given the stressors had been removed. When stressors were once again added he deteriorated.
[55] In particular Dr Stathis spoke of the applicant’s suicide attempt in April 2011 and said:
“Now, there was a significant deterioration in his mood beforehand. Over those three weeks he developed quite significant neuro-vegetative symptoms, and I noted some in my report. He had a low mood, and by the way, at - because I also was going on leave I had then decided to start him on a small dose of an antidepressant because I could see the significant deterioration in his mood, and I knew I was going away for two weeks, and I knew that the Court process was going to take some time. But the improvement in his mood was so swift. Within a day of him being told that he could talk to me about what had happened, that led me to believe that he had, in retrospect, an adjustment disorder. When you think about it, it's similar to when he came into the detention centre.
Yes?‑‑ When he committed the act, the index event on the 15th of February, there was difficulties at home and he was having difficulties at school. He's brought into the detention centre. It's a contained environment. He starts going to a school where he can almost get one-on-one tutoring.”
[56] All psychiatrists consider that there were no delusions or psychotic symptoms operating at the time of the commission of the alleged offences.
Dr Douglas
[57] In terms of diagnosis Dr Douglas concluded:
“I do not believe there is much in my assessment that would contribute to the issue of soundness of mind at the time of the offence. [The applicant] has fairly limited cognitive resources and a very specific language deficit, but, from my review of the psychiatric reports provided, it would appear there is a consensus of opinion that [the applicant] was in fact of unsound mind at the time of the crime primarily due to his depressive state. [the applicant] is of low intellect and has a specific language disorder and this may have contributed to his poor decision-making. It is certainly likely to have contributed indirectly to his increased depressive state, given his increasing fear that his poor academic performances were contributing to his grandmother's drinking and would lead to an inability on his part to provide for his mother.”
[58] All agree that the applicant is fit for trial.
Was the mental disease sufficient to deprive him of one of the relevant capacities?
[59] Professor Nurcombe stated that there is no reason to believe that the applicant did not know it was wrong to kill another person in the period immediately before the stabbing. He indicated that the applicant’s actions of running away after the stabbing show he knew he had done something wrong.
[60] However Professor Nurcombe considered that the applicant was so mentally desperate at the time of the killing as to be deprived of the capacity to control his actions when the deceased tried to prevent him from carrying out his wish to die:
“In other words, at the time of doing the act, he was suffering from a depressive mental disorder such that he was deprived of the capacity to understand what he was doing and the capacity to control his actions. Immediately before and immediately after the act, he had the capacity to know that he ought not do the act. At the time of the doing the act he was not affected by delusions. [The applicant] gave his report in a factual, sincere manner and was open and honest in volunteering potentially self-damaging information.”
[61] Professor Nurcombe added that a question arises whether it is believable that the force and number of stab wounds to the deceased is consistent with an inability to control one’s actions or understand what one is doing. He indicated that the applicant is amnesic for the stabbing itself and it is not possible to be certain however on balance he considered that “[the applicant] was in such frenzied despair at the time of the stabbing, that he was temporarily of unsound mind”.
[62] In Dr Beech’s opinion the applicant was deprived at the moment when he became focused on the act of killing himself to think clearly about the nature of his actions when he stabbed the deceased. He stated that the deprivation of the capacity to understand what he was doing and the deprivation of the capacity to control his actions derived from his mental disease namely his adjustment disorder with depressed mood. He stated:
“I believe that immediately prior to the incident [the applicant] would have been aware of the nature of any actions, would have been able to control them, and would have known that they were wrong. Similarly, almost immediately after the incident he was aware of what happened, of its nature, and of its wrongfulness. It was only during that brief period of time immediately prior to his friend’s intervention and during the stabbing of his friend that the deprivation occurred because at that time [the applicant] was so absorbed by what he was doing”.
[63] Dr Beech stated that in such a state of mind he did not believe that the applicant would have been able to reason with a required degree of sense and composure when the deceased intervened.
[64] Dr Harden also stated that in his opinion:
“he intended to kill himself and had prepared himself to do that as in his mind he saw no other way out of his situation as a burden to his family. It appears most likely that he was interrupted in the process of cutting himself, probably in order to try and kill himself, by the other young person attempting to stop him and in that brief period that other young person was stabbed fatally. On balance it is my opinion that he was deprived of the capacity to understand what he was doing in those circumstances related to his pre-existing depressed and suicidal mental state and with his reasoning and communication possibly already affected by pre-existing conditions.”
[65] It is clear that the reporting psychiatrists, Professor Nurcombe, Dr Beech and Dr Harden, all supported a finding that the applicant was of unsound mind at the time of the commission of the alleged offence on the basis that he was deprived of the capacity to understand what he was doing.
[66] It is also clear that all the reporting psychiatrists also supported a finding of diminished responsibility on the basis that he was “at least: suffering from a substantial impairment of the capacity to understand what he was doing. Professor Nurcombe indicated that at the time he interviewed the applicant, despite being 15 years of age the applicant was functioning intellectually at about the level of a nine year old child. Professor Nurcombe indicated that the applicant’s severe suicidal depression together with his mild mental retardation substantially impaired his capacity to control his actions and understand what he was doing at the time of the alleged offence.
[67] That conclusion was supported by Dr Beech and Dr Harden.
[68] In terms of fitness for trial all psychiatrists considered he was fit for trial provided he was assisted throughout the trial with explanations. It would also be necessary to support and monitor his mental state. Although rudimentary, Professor Nurcombe considered the applicant had an understanding of the legal process and is fit for trial. His main concern, if the charge was to continue according to law, was of suicidal depression as a result of stress in the courtroom. He indicated that the applicant should be closely monitored if the charge proceeds.
The three reporting psychiatrists joint document dated 1 September 2011
[69] Although I have already outlined the views of the 3 reporting psychiatrists above, I will also for the sake of completeness set out the full text of the document prepared by Drs Nurcombe, Beech and Harden on 1 September 2011.
“1.Was the applicant suffering from a state of mental disease or natural mental infirmity at the time of the act?
Agree to a mental disease
Dr Harden and Prof Nurcombe agree natural mental infirmity also
2.If so, what was the nature of the mental disease or infirmity?
All agree with a severe depressive illness at the time
Two agree with a mental infirmity one against (same as above)
3.Was the mental disease or infirmity such as to deprive him of:
Capacity to understand what he was doing
Agree that the mental disease in it self would not have deprived him of the capacity until he became focused on the act of killing himself
Capacity to control his actions
Prof Nurcombe and Dr Beech agree as per aboveDr Harden disagree
Capacity to know he ought not to do the act
All agree retained capacity
4.Was his mind, at the time of doing or committing the act, affected by delusions?
All agree no delusions
5.Was he at the time of the act in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair his capacity to understand what he was doing, or his capacity to know that he ought not to do the act?
All agree abnormality of mind which substantially impaired his capacity to understand
Capacity to control his actions?
Prof Nurcombe and Dr Beech agree as per above
Dr Harden disagree
6.Is there any dispute of facts?
No dispute of facts
7.Is he fit to plead, to instruct counsel, and endure the trial without serious adverse consequences?
Yes to all with the caveat that he would need to be observed closely through the trial for suicidal behaviour
8.How should he be managed in the future?
If no defence – remains the same treatment
If there is a defence - transfer to an adolescent mental health inpatient unit for medium term inpatient treatment, with a multimodal approach to treatment planning, with particular attention to education and vocational needs, including liaison with local catchment area child and youth mental health service and child and youth forensic outreach service”
The advice of the assisting psychiatrists
[70] Dr McVie considered that the applicant had a consistent history of symptoms of depression for at least two years prior to the offence in February 2010. She stated that those symptoms of depression arose due to stressors, psycho social stressors in the home and pressures at school. She noted that he was subsequently found to have significant cognitive difficulties, namely a specific language disorder and a severe verbal comprehension deficit.
[71] Dr McVie noted Dr Douglas’ testing and considered that the testing indicates a low level of background intellectual functioning. She also noted that the cognitive difficulties made it far less likely for him to be able to communicate his symptoms and his distress than would be expected of an average 13 year old boy and that this language deficit and intellectual deficit may well have exacerbated his symptoms.
[72] Dr McVie noted that whilst initially the difference in diagnosis caused her some concern, she considered that Professor Nurcombe had clarified the issues of difficulty of classification of diagnosis in young adults. Dr McVie noted that whilst Professor Nurcombe diagnosed a dysthymic disorder and Drs Beech and Harden diagnosed an adjustment disorder with depressed mood, she considered that in their oral evidence and in their summation documents “all three considered that this diagnosis was not a minor diagnosis, but was actually representative of a very severe depressive illness in an adolescent and all three agreed that this diagnosis constituted a mental disease for the purposes of s 27 of the Criminal Code.
[73] Dr McVie noted that none of the psychiatrists diagnosed any psychotic symptoms and that all three in their reports clearly offered diminished responsibility as a defence. They considered that the depression was an abnormality of the mind which would have caused substantial impairments in the applicant’s capacities. The difficulty Dr McVie noted seemed to be the substantiation of deprivation of capacity at the actual time of the offence. Dr McVie noted that this was clarified in oral evidence and that,
“all three came to the conclusion that the mental state that [the applicant] was in at the time of the killing – he was focused on actually killing himself and this mental state arose in itself from his depressive illness and in that state he was deprived of capacity. All three agreed in oral evidence that he was deprived of the capacity to understand what he was doing to understand the nature and quality of his act.”
[74] Dr McVie noted that Professor Nurcombe and Dr Beech went further with that deprivation and Professor Nurcombe clearly said he was also deprived of the capacity to control his actions.
[75] Dr McVie advised that the clinical evidence is that at the time of the offence the applicant was in a severe state of a depressive illness and was deprived of at least one capacity, namely the capacity to understand what he was doing.
[76] Dr McVie also commented on amnesia and stated that the inability to recall the actual details of such a serious traumatic event is not unusual; and while it may be due to peri-traumatic disassociations, in most adults who commit serious violent offences, who develop amnesia, the amnesia is patchy and it often does return with time. Her perception however is that in the applicant’s case due to his age and other cognitive difficulties it would probably be less likely that his memory of the event will ever return and it is probably due to the peri-traumatic disassociation and severe emotional trauma which occurred at the time which led to memory of the event not being laid down and that results in his inability to recall those actual moments when the stabbing occurred.
[77] In terms of placement Dr McVie considered that the applicant will need placement in a forensic inpatient adolescent unit. However Dr McVie indicated that she would await Dr Stathis’ update report in relation to placement and give advice subsequently.
[78] Dr Lawrence indicated that her views substantially coincided with those of Dr McVie. Dr Lawrence stated that the applicant, even at the best of times, was probably functioning at a level significantly below that of a 13 year old boy. She considered that very significantly there was a history of symptoms of a depressive condition which had been increasing over a period of many months and which appeared to be increasing significantly in the month leading up to the index offence. She considered that in response to his increasing stressors he was having difficulty sleeping. He was having increasing difficulties in coping and was experiencing some withdrawal.
[79] Dr Lawrence considered that the applicant describes developing guilty ruminations and a development of feelings of helplessness and hopelessness in the situation to the point where he formulates suicide, a plan and determined over a period of some days to implement that at a time at school. Dr Lawrence noted that he went to school with the intent of carrying out the plan. She considers there is no evidence to support a view that he had any animosity towards the student. Dr Lawrence considered that he was interrupted in his act of suicide by the return of the student.
[80] Dr Lawrence considered that all three psychiatrists agree that the applicant was suffering from a severe depressive disorder which was a mental disease in legal terms and that at the time of the index offence he had determined to kill himself. She considered that the intervening events appeared to add to his level of arousal. She considered it was a greater emotional arousal and that his actions towards the student were a result of a deprivation of the capacity to understand what he was doing at the time. Dr Lawrence also noted the view of two of the psychiatrists that he was also deprived of the capacity to control his actions.
[81] Dr Lawrence noted that one psychiatrist considered it was only limited to a deprivation of the capacity to understand. Dr Lawrence stated that in her view there was no doubt that there was a deprivation of capacity in legal terms at the relevant time. Dr Lawrence stated that that conclusion was consistent with her clinical understanding of the case. She also considered that there was no doubt he was at least suffering from a substantial impairment of the capacity to understand what he was doing if the court was not satisfied he was fully deprived of that capacity.
Was the applicant of unsound mind at the time?
[82] The first issue which needs to be determined is whether there is a sufficient factual basis for the psychiatrists to be satisfied that the applicant was fixated on the act of killing himself at the time the student intervened. There is no doubt that the applicant has in fact told all the reporting psychiatrists that he was commencing the act of cutting himself with a knife by raising it to his neck when the student intervened. The applicant states that he remembers that aspect of the events. He remembers the student trying to stop him cutting his neck with the knife by grabbing his wrist and telling him to stop.
[83] He remembers the act of raising the knife and the intervention. It is after the student intervenes by grabbing his wrist that his memory is unclear. His next memory is of the student on the floor covered in blood and he is saying ‘what have you done’. The lack of clarity only relates to detail of the extent of the intervention by the student and the precise response by the applicant. That is was the student stabbed in the back first or after he was stabbed in the abdomen? Was he entering of leaving the cubicle? In essence how did the interaction between the two boys evolve after the student grabbed his wrist?
[84] Due to the fact that this precise mechanism of the intervention and the response is unknown Counsel for the DPP has submitted that in this case there is a fact in dispute which is substantially material to the opinion of an expert and therefore pursuant to s 269 of the Act it would be unsafe to make a decision. Essentially the argument would seem to be that because we don’t know the precise interaction there is a possibility that the applicant could have regained capacity after the student intervened and therefore there is a dispute of fact. Counsel for the Director of Mental Health also raised the issue.
[85] Section 269 of the Mental Health Act 2000 (Qld) provides that:
“269 Dispute relating to substantially material fact
(1) The Mental Health Court must not make a decision under s 267(1)(a) [unsoundness] or (b) [diminished responsibility] if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.
(2) Without limiting subsection (1), a substantially material fact may be-
(a) something that happened before, at the same time as or after the alleged offence was committed; or
(b) something about the person’s past or present medical or psychiatric treatment.”
[86] Counsel for the DPP submits that there is no clear evidence of precisely what occurred in the toilet cubicle at the time the student was stabbed and he has never been able to explain what occurred at that precise point in time. Counsel noted that the evidence initially was that the applicant noted his "body taking control" and he did not refer to the any kind of interruption by the student until seen by Dr Beech on 28 January 2011.
[87] Counsel therefore argues that there is a reasonable possibility that the applicant’s later and more detailed account resulted from his unconsciously "filling in the blanks". Dr Beech conceded such reconstruction was possible and Professor Nurcombe gave evidence that:
“There will always be an element of reconstruction, particularly when somebody is trying to make sense of a senseless situation.”
[88] Counsel submits therefore that the court should be concerned about the reliability of the accounts given by the defendant to the reporting psychiatrists, especially where it is impossible to differentiate between reconstruction and "legitimate" memory.
[89] Counsel for the DPP argues that it is impossible for the court to come to any clear understanding of the interaction between the two boys at the time the student was stabbed and the applicant is unable to assist any further. Counsel submits that the limited scientific and forensic evidence does not permit any precise conclusion. Counsel argues that each psychiatrist appears to have assumed, perhaps not unreasonably from a clinical point of view, the correctness of the theory that the deceased intervened when the defendant was in the act of trying to kill himself. It is apparent that this theory is the basis for the opinion that there was a deprivation, rather than only a substantial impairment, of relevant capacities.
The views of the assisting psychiatrists with respect to the issue of whether there is a dispute of fact.
[90] The assisting psychiatrists gave their advice to the Court as set out above at the conclusion of the hearing on 2 September 2011. Counsel subsequently submitted written submissions. In their respective submissions Counsel for the DPP and Counsel for the Director of Mental Health raised the issue of whether there was dispute about a substantially material fact. Whilst that issue is ultimately a legal question the court reconvened on 29 September 2011 to obtain the advice of the assisting psychiatrists in relation to the clinical aspects of that issue.
[91] Both psychiatrists reiterated their view that the applicant’s amnesia about the detail of the short period of time during which the student was stabbed is not unusual. Dr Lawrence stated the phenomenon occurs so frequently across a spectrum of the population that it is clinically accepted that it is a psychological defence mechanism which serves a protective function.
[92] Dr Lawrence explained that where there is insufficient objective evidence in a particular case to fill in the ‘gaps’ in the knowledge some reconstruction is needed. Dr Lawrence indicated that the period of the gap is ‘very brief’ in this case and was the period between the applicant raising the knife to his throat and then finding the student on the floor. Dr Lawrence continued:
“Now it would be my advice that clinicians - such as we've heard from all three clinicians - there will always be a degree of reconstruction for when you try - I'm trying to say that the situation is a bit like filling in a jigsaw puzzle. There has to be a degree of reconstruction going on to explain the situation. Now in a jigsaw puzzle if you've got all of the big background pieces in place, it's clearly delineated, and you have a small missing piece in the middle it can be easily constructed or decided that this particular explanation, this particular piece, fits the missing spot appropriately and you can eliminate other pieces.
So when the background picture is unclear and a gap in a memory is very large of course that task is more difficult. But in this case I believe the missing pieces are relatively small, though important. All clinicians who - ultimately reconstructed that part of the jigsaw in a similar way in this case and, clinically, I believe it is valid to do so. In that reconstruction they have had regard to the big picture and the particular difficulties that [the applicant] had experienced in his life and was experiencing at the time. This took in his relationships, his mental state at the time and his subsequent account of his mental state and his behaviours.
I would advise that from a clinical point of view the missing knowledge should not be seen as facts in dispute, such as to invalidate the clinical opinions of the three psychiatrists who gave evidence. Furthermore, while all three experts could not be absolutely certain in their hypotheses, they were satisfied to a high degree about the validity of their hypotheses and that was that [the applicant] was, at the time of the student's stabbing, deprived of the capacity probably of morally knowing the wrongness of what he was doing, of controlling his actions, and also of understanding what he was doing, that is, it was done without any intent to kill as he applicant] has averred on many occasions since.”[2]
[2]Transcript day 3 p 3 l 42.
[93] Dr McVie concurred with this view that from a clinical perspective she did not consider that there was a dispute about a substantially material fact. Dr McVie continued:
“Expert psychiatrists, when they assess cases, they look clinically at the history, the collateral information both before and after the event, and their clinical assessment of the person at the time when they see them in terms of making their overall assessment and opinion. And I would advise that all three reporting psychiatrists have done thorough assessments in relation to [the applicant] and have come up with very similar conclusions.
One of the reasons that the test for the insanity defence, to my mind, is more probable than not is because it's very frequent that there are not 100 per cent certain facts. None of the experts in this case considered it a fact substantial material to their opinion was in dispute. And they all surmised that it was more probably than not that he was suffering with a very severe depressive illness which was a mental disease and that mental disease deprived him of at least one capacity, specifically the capacity to understand what he was doing at the time.”[3]
[3]Transcript day 3 p 3 ll 7-42.
[94] I accept that there are unanswered questions. Those questions include: Had the student left the toilet cubicle or not? Was the door to the cubicle closed? If the student left when did he return? What, exactly, happened when he did? What happened after he grabbed the defendant's wrist? How did he suffer the incised wounds to the webbing of his hands? How and in what circumstances did the deceased suffer the wound to his back? Was this wound inflicted before or after the fatal wound?
[95] Counsel for the DPP also notes that the applicant did not mention that he was in the act of killing himself when the student intervened until many months after the events and accordingly this raises issues of reliability. It is clear from the evidence of Dr Stathis however that the applicant had been told by his legal representatives not to discuss the case and in my view it is no surprise that it was not mentioned earlier. Furthermore as Dr Beech stated “it is possible that people have patchy recollection, they obviously think about it over time, other bits of memory may come back...”[4] Just because a memory returns does not mean it is a reconstruction.
[4]Transcript day 3 p 106 l 50.
[96] All psychiatrists agree that the applicant has in fact given a consistent version of events to them. Furthermore the evidence he gave has been substantiated in many respects. There is no doubt he had taken a kitchen knife from home that morning. He had said an overtly affectionate ‘goodnight’ to his mother the night before. He had the video on his phone as he stated. The knife clearly came out of his bag. The evidence clearly indicates that he wanted to take his life and that he had the means and the opportunity to do so in the cubicle that morning. There is also evidence that the applicant in fact unsuccessfully carried through with that plan after the student fell to the floor. I do not consider there is any reason to doubt the applicant’s clear admission that he was in the act of raising the knife to his throat when the student came back to collect his bag and intervened.
[97] I also note that none of the five psychiatrists including the assisting psychiatrists have indicated that they consider that there is a fact, which is substantially material to their opinion, which is in dispute. I note that Professor Nurcombe conceded under questioning from Counsel for the DPP that there was a difficulty in resolving the issue of unsoundness but he did not resile from his earlier view that he was satisfied that the applicant was deprived of the capacity to understand what he was doing at the time he was fixated on the act of suicide.
[98] In my view the lack of precise information about evolution of events after the applicant raised the knife to his own throat does not mean that the lack of knowledge of those subsequent facts constitutes a dispute about facts which are “substantially material”. The substantially material fact was that the applicant was in the act of “raising the knife to his own throat”. All the psychiatrists agree that once fixated on that act he was deprived of the capacity to understand the nature and quality of the acts that followed. In my view it does not, in real terms, matter which stab wound on the student came first or what the relative position of the two parties was because the applicant was already deprived of capacity as he was already fixated on the act of killing himself. Indeed Dr Beech specifically stated that it did not matter to his opinion about deprivation of capacity that the student had in fact sustained more than one injury.
[99] Not only do we have the applicant’s own statements about the raising of the knife but we have Professor Nurcombe essentially ‘reality testing’ what he had been told by the applicant. In this regard I am also influenced by Professor Nurcombe’s explanation as to how he arrived at this conclusion. In response to questions as to whether his hypothesis about the fixation on suicide was factually based he replied:
“I - in reaching that conclusion I thought of a number of different explanations that would explain the situation and would it be reasonable to go through what they were and why I discarded them and‑‑‑‑‑
Yes?‑‑ ‑‑‑‑‑was left with the last?
Yes?‑‑ Well, the first thing I considered was this was in fact enmity against - that [the applicant] had some reason to hate this boy, wanted to kill him and deliberately killed him, assassinated him other words. I see no evidence of that. There is no evidence that there was any enmity - they weren't - they had been friends, they were less friendly now, but there was no evidence of any enmity and certainly no bullying, just a few minor interactions between them that were difficult. The second thing I considered was this was - this boy was deluded, that he thought that [the applicant] was trying to hurt him in a deluded way, thought that [the student] was trying to hurt him in a deluded - there's no evidence of any delusions of persecution.
Yes?‑‑ I thought is this a Columbine type murder? Is this a boy who's feeling increasingly disaffected with the school situation? Very angry, feeling of injustice, wants to do something dramatic, go to school and shoot people randomly, et cetera. There's no evidence of that. This was done privately and discreetly in a cubicle, it was anything but dramatic in the sense of exhibiting his anger to the school environment. Then I considered the possibility that this was a wilful boy who could not brook being stopped by somebody and just got this boy out of the road with a knife before killing himself. I find that impossible to believe because there's nothing in this boy's background suggesting anti-social, highly aggressive, dominating nature of that sort, in fact the reverse.
Yes?‑‑ So I'm left with a situation then of a boy with a knife to his throat, another boy trying to save him from killing himself and a scuffle.
Yes?‑‑ Now, why would he kill the boy? Why would he stab the boy? What - is there any sensible explanation for why that might occur? There is none. It is a senseless situation.”
[100] Accordingly I do not consider that there is therefore a dispute about a fact which is substantially material to an opinion of an expert which would prevent this court making a decision pursuant to s 269 of the Act.
[101] It is clear that I need to be satisfied on the balance of probabilities that the applicant was of unsound mind at the time of the commission of the alleged offence of murder.
[102] Schedule 2 of the Act defines “unsound mind’ as follows:
“unsound mind means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some agent at or about the time of the alleged offence.
[103] Section 27 of the Criminal Code Act 1899 provides:
“27 Insanity
(1)A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
(2)A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
Conclusion
[104] There is no doubt that at the time of the alleged murder on 15 February 2010 the applicant was suffering from a severe depressive illness which had been present for over twelve months and which reached a peak of intensity in early 2010 with the approach of the new school year. The depression became so intense and severe that in the days prior to the stabbing he had suicidal ideation and resolved to take his own life on 15 February 2010. He also had a plan and a method of achieving that end on that day.
[105] Whilst the applicant was able to show the student a video on his phone I accept the views of the psychiatrists that that this was a futile attempt to distract himself and that once that attempt at distraction had been completed the applicant once again became focussed on his plan to kill himself with the kitchen knife which he had specifically brought from home for that purpose.
[106] All psychiatrists struggled with the precise classification which would apply to a 13 year old but all agreed it was a severe illness and was a dysthymic disorder, an adjustment disorder or an adjustment disorder with depressed mood.
[107] All psychiatrists considered that the nature and extent of his mental condition on the day was such that it was a mental disease. I consider therefore that there is ample evidence that on 15 February 2010 the applicant was suffering from a state of mental disease. I am also satisfied that on the basis of Dr Douglas’ report that he was also suffering from a natural mental infirmity at that time. I concur with Professor Nurcombe’s view that the natural mental infirmity would have aggravated his mental state and because he was suicidally depressed he would have been unable to think of alternatives to his situation. Ultimately however it was the mental disease which was operating at the time of the stabbing.
[108] The next question is whether at the time of the commission of the act, namely the act of stabbing the student, because of the presence of that mental disease the applicant was deprived of the capacity to understand what he was doing or of the capacity to control his actions or of the capacity to know that what he was doing was wrong.
[109] On the basis of the evidence of the three reporting psychiatrists and the advice of the assisting psychiatrists I am satisfied that at the time the applicant became fixated on that act of suicide by commencing to raise the kitchen knife to his throat he was deprived of the capacity to fully understand the nature and quality of his actions. In my view he was also deprived of the capacity to control his actions at that time.
[110] In my view the overwhelming evidence, once the arguments about s 269 are removed, is that the applicant was deprived of the capacity to understand the nature and quality of his actions and of the capacity to control his actions after the point in time when he raised the knife to his own throat to kill himself.
Is a forensic order required?
[111] Section 288 provides that the Court may make a forensic order if on a reference the Court decides a person was of unsound mind when the alleged offence was committed. If a forensic order is made the applicant will be detained in a stated authorised mental health service for involuntary treatment or care. In determining whether a forensic order is required the Court must have regard to the seriousness of the offence, the person’s treatment needs and the protection of the community.
[112] After the delivery of the decision on 30 September 2011 the Court reconvened to hear further evidence from the applicant’s treating psychiatrist Dr Stathis and to obtain the views of the assisting psychiatrists as to whether a forensic order was required. Dr Stathis had also prepared an updated report dated 15 September 2011.
Dr Stathis
[113] Dr Stathis gave evidence that the applicant‘s mental health was currently stable and that there was no evidence of an escalating mood disorder or anxiety. Dr Stathis also stated that the applicant’s behaviour in the Brisbane Youth Detention Centre over the last 19 months had been exemplary. Dr Stathis also explained, in some detail, the difficulty of an appropriate placement when a forensic order is made for a young person and when that forensic order requires that the young person be detained in an authorised mental health service for involuntary treatment or care.
[114] Dr Stathis indicated that the medium secure unit tends to be populated by adults who suffer quite significant mental health issues and are quite disabled. Dr Stathis indicated that it was not an appropriate place for a 15 year old adolescent male like the applicant to be housed. Similarly Dr Stathis stated that in a high secure facility the same issues would arise. Accordingly it was his view that the applicant would need to have a constant escort with him in a high secure unit given the nature of the psychiatric conditions the adults he would be housed with were suffering from.
[115] Dr Stathis gave evidence that he had also visited the high secure unit and had discussions with the directors and the nurse unit managers of the unit about a management plan should the applicant be placed in that unit. Dr Stathis stated however that the conclusion they all came to was that it would be very difficult to manage him within a high secure unit.
[116] Dr Stathis indicated that ultimately it was his view that an adolescent unit was the most appropriate option. There is an adolescent unit which is a long-term in-patient unit within an Authorised Mental Health Service which cares for young people with serious and complex mental health problems who need an extended stay in an in-patient unit. Dr Stathis advised that the young people in the adolescent unit suffer from a range of quite significant mental health problems including depressive disorders, psychotic illnesses, eating disorders or a complex intermix of those disorders. The unit also is used in managing “quite significant psychosocial complexities”. For those reasons he considered that an adolescent unit would be an ideal place for the applicant given that Queensland does not have any locked beds for adolescents. Dr Stathis also stated that the unit has “a rehabilitative model and approach and they have quite significant skills in integrating a young person back into society”.
[117] Dr Stathis stated that at the unit the applicant would have a very comprehensive assessment in terms of his integration with other young people and that the unit would also have the expertise to assess his mental state. Dr Stathis stated that in his view the applicant is not currently a risk to himself or others but he considered that his mental state would need to be monitored. He considered that any sudden change in an environment could theoretically precipitate a depressive disorder or a change in mood particularly given he had a further suicide attempt whilst in the Brisbane Youth Detention Centre.
[118] Counsel for the Director of Mental Health asked Dr Stathis about what strategies could be put in place for the future.
“What is in place, then, to try and make sure, in [the applicant]'s case, that this terrible tragedy does not repeat?‑‑ Yes. I discussed this at length with [the authorised psychiatrist who is the director at the adolescent unit], because that's clearly a concern and of interest. Can I say that if we look at the evidence that was given to the Court by the independent psychiatrists, it would seem that [the applicant] suffered a depressive illness, and then in the course of the depressive illness, formed a view that he would kill himself, and was at that moment where he - where he was trying to kill himself with that extreme distress that he disassociated for a short period of time. My view is that that's unlikely to occur at - particularly in the [adolescent unit] and I had quite some thought about this, why. First of all [the applicant]’s mental state will be monitored carefully and managed. That clearly wasn't available in the community around the index event. It is true that he did for - did have a suicide plan in the detention centre but that never came to fruition and there was no evidence that he was disassociating in any time in the youth detention centre. So, first of all, at the [adolescent unit] they could monitor his mental state very carefully, they could - they could treat him appropriately and intensively should it appear that he's developing a depressive illness. And they have processes in the [adolescent unit] to significantly reduce suicide risk. So when you take that all into context, the likelihood that [the applicant] would ever get to the point in time where he would have a knife to his throat and be in an extreme state to disassociate and someone then would try to prevent that happening - that likelihood, in my view, is remote.”
[119] Dr Stathis also gave evidence that the applicant’s education could be continued at the adolescent unit. He stated that he had now had a comprehensive speech and language assessment, a learning assessment as well as cognitive assessments. All of those assessments indicate that the applicant needs significant learning support through school. Dr Stathis considered that such support in itself “should reduce risk of further depressive illness.” Dr Stathis also outlined that the making of a forensic order would mandate supervision and close monitoring for as long as is necessary including “for life if that's what - if that is what's required.” Dr Stathis also indicated that forensic orders are regularly reviewed by the Mental Health Review Tribunal which would keep a forensic order in place for as long as was considered appropriate. Dr Stathis considered that currently the applicant’s risk of absconding and his risk to himself and others was low.
The views of the assisting psychiatrists
[120] Dr McVie indicated that she considered that a forensic order was required and that an adolescent unit was the appropriate placement. Dr McVie also stated that limited community treatment allowing only escorted leave was the most appropriate condition at this point in time. She considered that the transfer to the new environment of the adolescent unit would be quite unsettling. She considered that there needed to be a period of assessment by staff before any extended limited community treatment should be considered.
[121] Dr Lawrence agreed that an adolescent unit was the most suitable placement and that limited community treatment should be limited to ‘escorted leave’ on and off the grounds of the Centre at the moment.
[122] In my view a forensic order is clearly required given the seriousness of the incident which occurred as a result of the applicant’s depressive illness. A tragedy of significant proportions has occurred. The life of a talented young student has been lost in circumstances where, motivated by concern for the applicant this young student selflessly intervened to try and stop the applicant from taking his own life. The student’s very sad death has left his family bereft and his loss is acutely felt. His school community has also been severely affected and he is mourned by many who remember his generous spirit and caring nature.
[123] Despite the very serious nature of the circumstances of this case and the finding which has been made it is clear that, whilst the applicant has a depressive illness which has in the past been serious, he currently does not have a severe mental illness. As Dr Stathis indicated, at present the applicant “doesn’t have an acute, serious or complex mental health problem that requires an inpatient stay.”
[124] It is clear however that the applicant has treatment needs. Dr Stathis’ evidence at the hearing was that the applicant continues to suffer from an adjustment disorder with depressed mood. Dr Harden also considered that the applicant is quite fragile psychologically and has ongoing depressive symptoms, post traumatic symptoms as well as intellectual difficulties. Professor Nurcombe’s view at the hearing was that the applicant should remain in psychotherapy for the next twelve months and that particular attention should be devoted to monitoring his suicide potential and alleviating his post traumatic symptoms.
[125] Accordingly I consider that the applicant should be detained to an Authorised Mental Health Service. It is clear that the applicant will then be admitted to an adolescent unit which is in the Authorised Mental Health Service.
[126] Section 289 provides that when the Court makes a forensic order the Court may order, approve or revoke limited community treatment. It is clear that the Court must not order or approve limited community treatment unless it is satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others. Section 289 (6) provides that in deciding whether to order or approve limited community treatment the court must have regard to the patient’s mental state and psychiatric history, the offence, the patient’s social circumstances and the patient’s response to treatment and willingness to continue treatment.
[127] Having considered the advice of the assisting psychiatrists and the evidence of Dr Stathis I am satisfied that at present there is no evidence of any risk to the safety of the applicant or the community. However I do not consider that limited community treatment should be approved at this stage given the imminent upheaval in the applicant’s life. He will shortly be transferred to an adolescent unit of the Authorised Mental Health Service which will be a major change after 19 months in detention at the Brisbane Youth Detention Centre. The first step should be as Dr Stathis outlined, that the applicant undertake a full and extensive psychiatric assessment on admission to the adolescent unit. A treatment and care plan will then be prepared as a result of that assessment. That plan will then outline strategies for the applicant’s management and will also assess his risk. His progress will then be monitored as will his mental state. I consider that in the circumstances he should only be allowed escorted on and off grounds limited community treatment. It is clear that such leave will be at the discretion of the treating psychiatrist. The Forensic Order will be reviewed by the Mental Health Review Tribunal in six months time. At that stage a thorough review of his progress in the adolescent unit can be undertaken and the question of the appropriate form of limited community treatment can be thoroughly assessed.
[128] The Forensic Order should therefore be in terms of the draft submitted by the Director of Mental Health in the following terms:
CONDITIONS OF LIMITED COMMUNITY TREATMENT
Escorted (on and off grounds of the hospital):
For the purposes of attending planned education and rehabilitation activities.
1.That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
2.That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;
3.For the purposes of escorted limited community treatment, the patient comply with the directions of the nominated staff member/s for the duration of the limited community treatment.
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