Re HHR
[2012] QMHC 15
•5 June 2012
MENTAL HEALTH COURT
CITATION:
Re HHR [2012] QMHC 15
PARTIES:
REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVES IN RESPECT OF HHR
PROCEEDING NO:
No 244 of 2011
No 68 of 2012DELIVERED ON:
Ex tempore reasons delivered on 5 June 2012
Written reasons delivered on 19 June 2012DELIVERED AT:
Brisbane
HEARING DATE:
5 June 2012
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr F T VargheseFINDINGS AND ORDERS:
That there is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the patient committed the alleged offences;1.
That the patient is unfit for trial and that the unfitness for trial is of a permanent nature;2.
Pursuant to s 283 of the Mental Health Act 2000 (Qld) the proceedings against the patient are discontinued and further proceedings must not be taken against him for the acts or omissions constituting these offences;3.
Pursuant to s 288 of the Mental Health Act 2000 (Qld) a Forensic Order be made and the patient be detained at The Royal Brisbane and Women’s Hospital Authorised Mental Health Service;4.
ursuant to s 289 of the Mental Health Act 2000 (Qld), subject to the discretion of the authorised psychiatrist, and on the following conditions, which were approved by the Mental Health Review Tribunal on 1 December 2011:community treatment to commence immediately, limitedP5.
That the patient reside in a secure Residential Age Care Facility(a)
On escorted absences, the patient is to be accompanied by a health service staff member of the secure Residential Aged Care Facility and shall obey their lawful instructions(b)
On unescorted absences, the patient is to be accompanied by a suitably qualified staff member of the secure Residential Aged Care Facility and shall obey their lawful instructions(c)
Any escorted and unescorted leave is to be on the basis that the patient have direct one on one staff supervision.(d)
That the patient not drive a motor vehicle.(e)
That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist(f)
That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist(g)
That the patient not contact KAA and not to go to --- (the place) or within 30 metres of the place. (h)
That the patient have no direct physical or verbal contact with any person under the age of 15 years.(i)
The limited community treatment is to be implemented subject to the assessment of the treating psychiatrist that is appropriate having regard to the patient's mental condition at the time of implementation.(j)
COUNSEL:
J Hunter SC for the defendant
J Tate for the Director of Mental Health
A Lossberg for the Director of Public ProsecutionsSOLICITORS:
Peter Shields Lawyers for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
ANN LYONS J:
On 5 June 2012 HHR, the subject of this reference, was found to be unfit for trial and permanently so. A Forensic Order was also made detaining him to The Royal Brisbane and Women’s Hospital Authorised Mental Health Service. I gave short ex tempore reasons for those orders and indicated that I would give more extensive written reasons at a later date given the significant issue which arose in this reference in relation to the question of whether dementia is a mental illness as defined by the Mental Health Act 2000 (Qld) (The Act). These are those further reasons.
The current references
HHR is charged with three offences, namely: one count of attempted indecent treatment of a child under 12 who was a lineal descendant; and two counts of indecent treatment of a child under 12 who was a lineal descendant. It is alleged that the first two offences occurred between January and July 2011 and the last offence occurred on 9 July 2011.
On 15 September 2011 the legal representatives for HHR filed this reference in relation to his mental condition at the time of the commission of the alleged offences. A reference by the Director of Mental Health was also filed on 20 October 2011.
The previous offences
On 10 June 2011 the Mental Health Court determined an earlier reference in relation to HHR. He was charged with six counts of indecent treatment of a child under 16, which were alleged to have occurred between 2002 and 2008. The Court noted that HHR disputed the charges but found that he was permanently unfit for trial. He had a diagnosis of significant dementia with impaired memory and thinking function. At that time, Dr Ohlrich was uncertain as to the origin of his dementia but considered that it could be related to a degenerative process such as Alzheimer’s or to a cerebrovascular disease.
Dr Lucille Douglas had provided a report dated 25 November 2010 in which she indicated there was significant and abnormal deterioration in HHR’s overall memory functioning. Her assessment indicated that his capacity to learn and retain information was substantially impaired and fell below a level exceeded by 95 to 98 per cent of the population. She also noted his strong tendency to confabulate.
HHR was placed on a Forensic Order (FO) on 10 June 2011 in relation to those charges and limited community treatment (LCT) was approved to commence immediately.
The circumstances surrounding the current offences
HHR is accused of inappropriately touching his seven year old granddaughter whilst she and her mother were visiting him at his nursing home. It is alleged that there was grooming behaviour in relation to the granddaughter during the alleged offence in that he began by touching her in a non sexual part of the body, then moving on to increasingly private areas before turning her around, touching her breasts and then touching her groin. Furthermore there is an allegation that HHR used the television guide to cover up his hand in the victim’s groin.
HHR is disputing the facts in relation to all three offences and denies inappropriately touching his granddaughter.
Dr Peter Devadason has been HHR’s treating psychiatrist under the existing FO and states that he is currently living in a secure (locked), male-only nursing home. Dr Devadason states that HHR has dementia, probably of the Alzheimer’s type, which appears stable but that he has significant cognitive deficits and requires assistance with all activities of daily living.
Dr Devadason considers, however, that HHR had developed a system to enable the inappropriate touching such that he took his granddaughter to a place of privacy and also instructed her not to tell anyone about the abuse. Dr Devadason also indicated that there was evidence that he was having inappropriate conversations in relation to children with a fellow resident, namely WHR.
HHR is currently being treated with Risperidone to minimise the risk of sexually inappropriate behaviour. Dr Devadason said that it is considered that HHR is a high risk of inappropriate sexual behaviour. Dr Devadson indicated that along with his diagnosis of dementia he also has a diagnosis of paedophilia and was attracted to females not limited to incest.
HHR’s finances are managed by the Public Trustee. He has an appointment of the Adult Guardian for health, lifestyle and other legal matters.
Dr Devadson confirmed that HHR would have significant difficulty in participating in the legal process and that the progressive cognitive decline renders him permanently unfit for trial.
It would seem clear that HHR is disputing the offences. Section 268 of the Act provides:
“268 Reasonable doubt person committed offence
(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).
(2) However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.”
Accordingly, pursuant to s 268 the Court must not make a decision as there is a reasonable doubt that HHR committed the offences.
I am satisfied that the doubt does not arise simply as a consequence of HHR’s mental condition.
Is HHR fit for trial?
I note that on 11 June 2011 this Court found HHR permanently unfit for trial and permanently so.
Having considered all the medical reports and the advice of the assisting psychiatrists I am satisfied that HHR is unfit for trial and permanently so.
Is a Forensic Order Required?
Having determined that HHR is unfit for trial and permanently so s 288 requires the Court to consider whether a Forensic order is required as follows:
“288 Mental Health Court may make forensic order
(1)This section applies if, on a reference, the Mental Health Court decides a person charged with an indictable offence—
(a) was of unsound mind when the alleged offence was committed; or
(b) is unfit for trial for the alleged offence and the unfitness for trial is of a permanent nature; or
(c) is unfit for trial for the alleged offence and the unfitness for trial is not of a permanent nature.
(2) The court may make an order in accordance with this division (a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(a) or (b) that the person be detained for(3) The court must make an order in accordance with this division (also a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(c) that the person be detained for involuntary treatment or care.
(4)In deciding whether to make an order under subsection (2), the court must have regard to the following—
(a) the seriousness of the offence;
(b) the person’s treatment or care needs;
(c) the protection of the community.
I note that a FO is currently in place in relation to the previous charges. Is a further FO required?
In my view the criteria in s 288 have been satisfied. These are clearly serious offences. The protection of the community is a real concern given the risk of reoffending is still high and the fact that HHR was already on a FO when the new incidents occurred. In my view a FO should be made. The making of a FO is a declaration of the seriousness with which the offences are regarded by this Court and the community. A FO also signals the need for the protection of the community and ensures that the treatment needs of a mentally ill person are met.
There may or may not be any practical effect on HHR’s treatment and care on a day-to-day basis but, in my view, that does not alter the need for the declaration to be made that a FO is actually required. There are clearly serious offences involved in the current reference.
I also note that HHR was in a nursing home at the time and it was the vigilance of staff which led to the current offences being detected. I note Dr Devadason’s views that he had planned the offending behaviour and tried to conceal it. A further FO makes it quite clear that there have been further offences despite HHR being in care and signals to staff the need for constant vigilance.
A further FO also makes it quite clear to the Mental Health Review Tribunal that further offences have occurred.
The clear advice from the assisting psychiatrists is that a FO is required.
What type of Forensic Order is required?
Having determined that a FO is required the next question is whether it should be a FO (Mental Health Court) or FO (Mental Health Court – Disability).
In this regard, the provisions of s 288(5) and (6) require the Court to consider whether the unfitness is a consequence of an intellectually disability, as follows:
“(5)After deciding to make an order under subsection (2), or for the purpose of making an order as required under subsection (3), the court must consider whether the person’s unsoundness of mind or unfitness for trial is a consequence of an intellectual disability.
(6)If the court does not consider the person’s unsoundness of mind or unfitness for trial is a consequence of an intellectual disability, the order—
(a) must be a forensic order (Mental Health Court); and
(b) must state that the person is to be detained in a stated authorised mental health service for involuntary treatment or care.”
Is HHR’s unfitness a consequence of an intellectual disability?
The Current Classification Systems
According to the current DSM-IV, dementia is the development of multiple cognitive deficits manifested by both memory impairment and impairment in at least one other cognitive domain including language, praxis, gnosis and executive functioning. Dementia is divided into types depending on the etiology, including Alzheimer’s disease, dementia with Lewy bodies, vascular dementia and frontotemporal dementia. Dementia can also be caused by other medical and neurological conditions or can be caused by various substances.
In DSM-III, dementia was categorised as a syndrome (set of signs and symptoms) and as a disorder. In DSM-IV dementia is no longer referred to as a syndrome but rather reference is made to specific disorders and specific criteria for dementia due to Alzheimer’s disease, vascular disease, specific medical conditions and substance-induced conditions. DSM-IV further divides dementia into two more categories – dementia due to multiple etiologies and dementia not otherwise specified.
Another classification system for dementia is offered in the ICD-10 which uses a syndromic approach and offers criteria for general dementia, and specifically for four types: Alzheimer’s disease; vascular dementia; dementia in other disease classified elsewhere; and unspecified dementia. There is a severity distinction in the ICD-10 with mild, moderate and severe severity distinctions, which does not exist in the DSM-IV classification system.
In ICD-10, Dementia is described as a “syndrome due to disease of the brain, usually of a chronic or progressive nature in which there is a disturbance of multiple higher cortical functions, including memory, thinking, orientation, comprehension, calculation, learning capacity, language and judgment. This syndrome occurs in Alzheimer’s disease, in cerebrovascular disease, and in other conditions primarily or secondarily affecting the brain.”
It is clear that there is a fundamental difference of opinion as between the Director of Mental Health and the Director of Forensic Disability in relation to whether dementia is correctly defined as a mental illness or whether it is a cognitive disability and therefore more accurately defined as an intellectual disability.
The Court therefore sought an independent report from Professor Gerard Byrne, an expert in geriatric and forensic psychiatry. Professor Byrne provided a report dated 4 June 2012 and also attended the hearing on 5 June and gave evidence to the Court.
Professor Byrne’s Evidence
Professor Byrne stated that dementia can be succinctly defined as the medical syndrome of brain failure. Professor Byrne explained that dementia is an acquired syndrome of adult life in which there is a decline from a previous level of cognitive function. This cognitive decline must cause impairment in the ability to work or engage in activities of everyday living. He also indicated that there must be objective evidence of neuropsychological dysfunction, either on clinical examination or on formal testing. He also stated that the cognitive decline must not be occurring solely on the basis of delirium, depression, mania or psychosis.
Professor Byrne stated that dementia is associated with changes in personality, mood, memory, language, perception, praxis, insight, judgment and behaviour. He advised that the majority of people with dementia are unaware of their condition due to the presence of anosognosia (organic denial of illness) and that dementia is usually progressive and almost always permanent.
Professor Byrne confirmed that in Australia the most common diseases causing dementia are considered to be Alzheimer's disease, cerebrovascular disease, cortical Lewy body disease, and frontotemporal lobar degeneration. He stated that each of these diseases is characterised by clinical and pathological heterogeneity. For example, there are several different types of Alzheimer's disease, including one type which mimics frontotemporal dementia and one which causes cortical blindness. There are also several different types of cerebrovascular disease that can lead to dementia, including deep white matter ischaemia and multiple small and medium-sized strokes.
Professor Byrne advised that it has been proposed to rename dementia as Major Neurocognitive Disorder in DSM-V from May 2013, and to employ a significantly revised set of diagnostic criteria. It is also proposed to introduce specific diagnostic criteria for several of the more common causes of dementia, including what will in the future be called Frontotemporal Neurocognitive Disorder.
In terms of whether dementia is best considered as a ‘mental disease’ or a ‘natural mental infirmity’, Professor Byrne stated as follows:
“From the medical perspective, it seems to me reasonable to consider that lifelong intellectual impairment (mental retardation in common parlance) commencing at or prior to birth is a natural mental infirmity but not a mental disease. In other words, mental retardation of such a severity as to deprive a person of one or more of the three relevant capacities would constitute natural mental infirmity.
Notwithstanding this, people with lifelong intellectual impairment are also at risk of developing mental disorders, including anxiety, depression, mania, psychosis and dementia. Thus, they could have a mental disease as well as a natural mental infirmity. Either or both of these conditions could deprive them of one of the relevant capacities.
In contrast, it seems to me that a schizophrenic or depressive or manic disorder commencing in adult life is a mental disease but not a natural mental infirmity.
In my view, brain damage acquired in adult life, which deprives a person of one of the relevant capacities, should also be labelled a mental disease rather than a natural mental infirmity.
Dementia is a medical syndrome due to a variety of underlying diseases that cause persisting damage to the brain. Dementia is classified under both major nosologies (DSM-IV-TR & ICD-10) as a mental disorder.
In the Mental Health Act 2000 mental illness is defined as ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.’ As dementia usually involves disturbances in all four of these domains, I think it is a mental illness for the purposes of the Mental Health Act 2000.
As dementia is a medical syndrome that causes brain failure, is a mental disorder under DSM-IV-TR and ICD-10, and is arguably a mental illness for the purposes of the Mental Health Act 2000, I take the view that it should be considered as a mental disease rather than as a natural mental infirmity for the purposes of s 27 of the Criminal Code.”
In terms of what the purpose of a FO is for dementia patients, Professor Byrne stated that the principal purpose of a FO is to ensure that the person obtains the appropriate level of supervision and care necessary to protect the public. Their care might include the administration of psychotropic medications and thus also constitute treatment.
He stated that supervision might include residing in a locked facility, albeit one that is not secure in the sense that a forensic unit might be secure. Alternatively, it might include residing in a domestic situation, such as a family home, that afforded a similar level of protection.
Professor Byrne considered that the care is likely to include a range of pharmacological and non-pharmacological interventions, which seek to modify the person's behaviour or ameliorate the consequences of their behaviour. This would include, for example, the antipsychotic medication Risperidone, which is licensed by the Therapeutic Goods Administration and subsidised by the Pharmaceutical Benefits Scheme in Australia for “the management of behavioural disturbances characterised by psychotic symptoms and aggression in patients with dementia where non-pharmacological methods have been unsuccessful”.
Submissions from Counsel for the Director of Mental Health
It is argued by Counsel for the Director of Mental Health (DMH) that a finding of unfitness for trial due to fronto-temporal dementia, as opined by Dr Devadason, would therefore be a finding that the unfitness was a consequence of an intellectual or cognitive disability. This submission was based on an argument that the 'ordinary' meaning of cognitive disability it is more broadly defined than the definition Professor Byrne relied upon and is based on Professor Byrne’s evidence that “the term cognitive disability is more broadly defined in the Forensic Disability Act 2011 and I think it could be applied to people with adult-onset dementia but not to those with mild cognitive impairment who, by definition, are not disabled.”
Counsel for the DMH argued that the recent amendments to s 288 of the Act enable the Mental Health Court to make either a FO (Mental Health Court) or a FO (Mental Health Court – Disability) in relation to HHR. Counsel argued that dementia is a condition that is difficult to categorise as a mental illness or intellectual cognitive disability as required under s 288 of the Act. However, it is submitted that there is no legislative barrier to making a FO (Mental Health Court - Disability) for HHR and that a FO (Mental Health Court - Disability) would meet his treatment and care needs and provide for his safety and that of the community.
Counsel submitted that the category of FO was a significant issue as the type of FO impacts on HHR’s ongoing management and care. In particular, a FO (Mental Health Court - Disability) authorises detention and care, while a FO (Mental Health Court) authorises the provision of involuntary treatment for a mental illness as well as detention and care. The essential submission is that a FO (Mental Health Court – Disability) is the most appropriate order in the circumstances.
The primary differences between the orders are:
Forensic Order (Mental Health Court) Forensic Order (Mental Health Court -Disability) Provides authority to treat or provide care for a mental illness Provides authority to provide care to intellectual or cognitive disability Provides authority to detain in an authorised mental health service Provides authority to detain in an authorised mental health service or the forensic disability service (subject to additional criteria being met) Reviewed by MHRT under criteria relevant to mental illness Reviewed by MHRT under criteria relevant to intellectual or cognitive disability
Significantly, it is argued that the FO (Mental Health Court – Disability) aims to address longstanding ambiguity about the administration of involuntary treatment to this population (i.e. people in mental health services with an intellectual or cognitive disability). A FO (Mental Health Court – Disability) therefore will only authorise detention and care, and not involuntary treatment.
Counsel argues that treatment provided to this cohort can be provided with consent, under the Guardianship and Administration Act 2000 (Qld) (Guardianship and Administration Act) or under the involuntary treatment provisions of the Mental Health Act if the treatment is for a mental illness.
Counsel for the DMH submitted that the intention of limiting FOs (Mental Health Court – Disability) to care is based on achieving a policy objective with respect to the making of a FO (of any type) which is the making of a FO is consequent to the commission of an alleged offence and the associated authorisations (to detain, treat, care, etc) necessarily hinge upon the unsoundness of mind or unfitness decision. Imposing treatment for a mental illness where the decision of unsoundness or unfitness does not relate to a mental illness is difficult to justify, having regard to the overarching principles of the Act, particularly in relation to ensuring the same basic human rights are recognised and taken into account for all persons.
Counsel for the DMH argues that limiting the FO (Mental Health Court – Disability) to the provision of care ensures that forensic patients who have a finding of unsoundness or unfitness relating to an intellectual or cognitive disability have the same rights as other members of the community to give consent to treatment for mental illness or, if consent is not possible, to have the treatment avenues under the involuntary treatment provisions of the Act or the Guardianship and Administration Act considered.
It is also argued that this policy objective is further supported by the inclusion of a new subsection (2) in s 8 of the Act, which states that the principles of the Forensic Disability Act 2011 (Qld) apply to the administration of the Act in relation to persons with an intellectual or cognitive disability.
Counsel submitted that the separation of treatment and care in the Mental Health Act to achieve the policy objective outlined above does not impact on considerations of risk to the community by the Mental Health Review Tribunal once a FO (of any type) is made. The requirement for the Tribunal to be satisfied that a patient does not represent an unacceptable risk to themselves or others, before revoking a forensic order or approving limited community treatment, enables the Tribunal to consider all matters relevant to risk, including any issues of dual diagnosis.
It is argued by Counsel for the DMH that the separation of the terms 'treatment' and 'care' in the Act is necessary to ensure the overarching purpose of the Act is met. The purpose of the Act is to ensure the provision of involuntary assessment and treatment and the protection of persons who have mental illness. Furthermore, the Act also has an additional function in relation to the application of the forensic provisions for people with an intellectual or cognitive disability who are diverted from the criminal justice system, due to the limitations of the forensic disability scheme currently available. It is argued that, having regard to the purpose of the Act, the terms 'treatment' and 'care' are separated throughout the Act to reflect the different needs, approaches and service responses for people with a mental illness as opposed to people with an intellectual or cognitive disability.
For the purposes of the Act, the term 'treatment' is limited in its application to persons who have a mental illness and is defined as meaning anything done, or to be done, with the intention of having a therapeutic effect on the person's illness
Accordingly, it is argued that treatment under the Act is clearly differentiated from care as it only relates to therapeutic interventions for mental illness. Care is not explicitly linked to mental illness in the Act in the same way as treatment, therefore it may apply more broadly to persons with an intellectual or cognitive disability as well as persons with a mental illness.
Counsel for the DMH noted that in the update report of 27 February 2012, Dr Devadason states that HHR is being treated with Risperidone (4mg nocte), to minimise the risk of sexually inappropriate behaviour. This was prescribed under the FO, but in anticipation of this order being changed to a FO (Mental Health Court – Disability), the Adult Guardian delegate for HHR has given approval for Risperidone to be used indefinitely for HHR.
Counsel argued that the treatment, approved by the Adult Guardian, can continue to be enforced by HHR’s treating team under s 67 of the Guardianship and Administration Act which provides that a guardian's consent is sufficient to, in effect, 'enforce' treatment where an adult with impaired capacity has minimal or no understanding of what the health care involves and why it is required and the health care is likely to cause no distress (or the distress is outweighed by the benefit).
Submissions from Counsel for the Director of Forensic Disability
Counsel for the Director of Forensic Disability (DFD), however, argues that HHR’s unfitness is not a consequence of an intellectual disability but is a consequence of a mental disease, a mental disorder and a consequence of a “mental illness” (as defined in the Act).
It is also argued that Alzheimer’s disease can be “treated” with cholinesterase inhibitors which have been shown in trials to slow cognitive decline in mild to moderate levels of the disease. It was submitted that as one-third of people with dementia experience moderate to severe mental health problems, a person with dementia is likely to require both non pharmacological and non-pharmacological “treatment” for neuropsychiatric or behavioural symptoms.
In particular, it was argued that anti-psychotic medication is considered for behavioural and psychological symptoms of dementia such as anxiety and depression, as well as for psychotic features and agitation. Benzodiazepines are also used in controlling behaviour but are generally limited to short term control of acute agitated behaviour. Similarly antidepressants are also used for depressive symptoms in patients with dementia.
Accordingly, due to the need for treatment, Counsel submitted that if a person with dementia is ordered to be placed on a FO, it should be a FO (Mental Health Court) not a FO (Mental Health Court – Disability).
It is also submitted the primary service provider for the treatment, management and development of a care plan for patients with dementia is Health (Aged Care), not Disability Services.
Counsel for the DFD also noted that the evidence of Professor Byrne was that neither Mental Health Services nor Disability Services are best placed to deal with what is essentially an Aged Care matter in respect of dementia. Counsel submitted therefore that when the legislation is reviewed consideration needs to be given to whether there needs to be a third option in terms of the type of FO if the primary illness is not clearly a mental illness and not clearly an intellectual disability but it is, to use that loose expression, "other".
Submissions from Counsel for HHR
Counsel argued that it is common ground that HHR unfitness for trial is because he suffers from Dementia of the Alzheimer's Type. Counsel argued that, according to Professor Byrne, that is a mental illness.
Counsel noted that the critical question under s 288(5), however, is whether his unfitness for trial is a "consequence of an intellectual disability."
Counsel argued that whilst "intellectual disability" is non-exclusively defined in the Act as "including a cognitive disability", but that "Cognitive disability" is not defined in the Act. Furthermore, the Act does not pick up the definitions of intellectual disability and cognitive disability in the Forensic Disability Act until subsection 288(8).
Counsel submitted that those definitions are not relevant in the context of subsection 288(5). It is only once a decision has been made that the appropriate order is a FO (Mental Health Court – Disability) that those definitions are then said to inform the discretion to either detain in the Forensic Disability Service or a stated Authorised Mental Health Service. Counsel argued that had parliament intended the words "intellectual disability" in s 288 to be interpreted in accordance with the definitions in the Forensic Disability Act, it could readily have expressly said so.
Accordingly Counsel submitted that, as the evidence of Professor Byrne makes plain, HHR has a mental illness and an aspect of that illness is an impairment of his intellectual functioning, but that is a common consequence of many mental illnesses.
Furthermore it was argued by Counsel for HHR that his mental illness is treatable. He is currently being treated for it. The Act draws a distinction between "treatment and care", "care", and "care and support". It was submitted that the Act should not be interpreted so as to lead to the result that a person who needs treatment should be the subject of an order that specifically does not include the provision of treatment.
The advice of the Assisting Psychiatrists
Both the assisting psychiatrists indicate that a FO is required given the seriousness of the offences, the protection of the community and HHR’s treatment needs. Dr McVie noted that he is currently being treated with Risperidone and is in a nursing home with limited access to vulnerable people and children.
Dr McVie also noted that Dr Devadason’s view is that he is at high risk of sexually reoffending. Dr McVie considered that the FO should be a FO (Mental Health Court) and not a FO (Mental Health Court – Disability)
Dr Varghese indicated that, in his view, the clinical evidence is clear that HHR suffers from dementia of Alzheimer's type and his clear advice was that that is a mental illness and not an intellectual disability. He also considered that he is clearly unfit for trial on a permanent basis and that a FO is indicated. He noted that the latest report from the treating psychiatrist indicated there are still risk issues. Dr Varghese clear advice was that a FO (Mental Health Court) was required as opposed to a FO (Mental health Court Disability).
Conclusions
In my view it is clear that HHR is disputing the offences and accordingly an issue arises pursuant to s 268 of the Act. Accordingly, this Court is precluded from proceeding further to determine the issue of unsoundness of mind.
It is clear, however, that HHR is unfit for trial and that the unfitness is permanent.
I consider the evidence indicates that his unfitness is due to his dementia of the Alzheimer’s type.
In my view, the clear evidence of Professor Byrne was that in this case that dementia is a mental illness. His clear evidence was:
“In the Mental Health Act mental illness is defined as ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.’ As dementia usually involves disturbances of all four of those domains, I think it is a mental illness for the purposes of the Mental Health Act 2000.”
I consider that the unfitness does not arise as a consequence of an intellectual impairment but as a result of this mental illness. He clearly has impairment of memory as a consequence of this mental illness.
Furthermore, it is clear that HHR needs treatment, including pharmacological treatment, currently for this mental illness and may well need further treatment into the future.
I consider that the appropriate orders are as follows.
ORDERS:
1. That there is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the patient committed the alleged offences;
2. That the patient is unfit for trial and that the unfitness for trial is of a permanent nature;
3. Pursuant to s 283 of the Mental Health Act 2000 (Qld) the proceedings against the patient are discontinued and further proceedings must not be taken against him for the acts or omissions constituting these offences;
4. Pursuant to s 288 of the Mental Health Act 2000 (Qld) a Forensic Order be made and the patient be detained at The Royal Brisbane and Women’s Hospital Authorised Mental Health Service;
5. Pursuant to s 289 of the Mental Health Act 2000 (Qld), limited community treatment to commence immediately, subject to the discretion of the authorised psychiatrist, and on the following conditions, which were approved by the Mental Health Review Tribunal on 1 December 2011:
(a) That the patient reside in a secure Residential Age Care Facility
(b) On escorted absences, the patient is to be accompanied by a health service staff member of the secure Residential Aged Care Facility and shall obey their lawful instructions
(c) On unescorted absences, the patient is to be accompanied by a suitably qualified staff member of the secure Residential Aged Care Facility and shall obey their lawful instructions
(d) Any escorted and unescorted leave is to be on the basis that the patient have direct one on one staff supervision.
(e) That the patient not drive a motor vehicle.
(f) That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist
(g) That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist
(h) That the patient not contact KAA and not to go to --- (the place) or within 30 metres of the place.
(i) That the patient have no direct physical or verbal contact with any person under the age of 15 years.
(j) The limited community treatment is to be implemented subject to the assessment of the treating psychiatrist that is appropriate having regard to the patient's mental condition at the time of implementation.
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