Re Hicklin

[2011] QMHC 14

MENTAL HEALTH COURT

CITATION:	Re Hicklin  [2011] QMHC 14
PARTIES:	REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF FREDERICK HICKLIN
PROCEEDING NO:	0004/10
DELIVERED ON:	31 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 March and 31 August 2011
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr J M Lawrence Dr E N McVie
FINDINGS AND ORDERS:	That at the time of the 19 alleged offences the subject of the reference the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);
CATCHWORDS:	MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – Where the defendant is charged with 19 offences – where evidence the defendant suffers from epileptic seizures – whether the defendant was of unsound mind at the time of the offences.
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health S Ryan for the Director of Forensic Disability A Lossberg for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Forensic Disability (Qld) Director of Public Prosecutions (Qld)

ANN LYONS J:

This reference

1. Mr Hicklin is charged with a total of 19 offences covering 9 separate events between 14 June 2008 and 22 October 2010. The charges include 10 counts of wilful damage, one of attempted stealing, one of assault occasioning bodily harm, one count of attempted common assault, one count of assaulting or obstructing police, three counts of public nuisance and two breaches of bail. It is clear that on each of those occasions Mr Hicklin behaved in an irrational and aggressive fashion and was unresponsive to efforts to try and control him or calm him down.

1. This reference was part heard on 21 March 2011and then adjourned to the August 2011 sittings to allow further information to be obtained in relation to the arrangements which had been put in place to support Mr Hicklin in the community.

The alleged offences

1. On 14 June 2008 an ambulance was called to Mr Hicklin’s residence and after he had a seizure he became aggressive with the ambulance service officers and when police attended he became violent and aggressive and attempted to gain entry into the ambulance vehicle. He then damaged some aspects of the vehicle.

1. On 11 September 2008 police attended a shopping centre at Mermaid Waters where Mr Hicklin was causing a disturbance. On arrival Mr Hicklin was seen brandishing a bottle and he was disarmed and arrested. There was also information that Mr Hicklin had broken a side mirror of a vehicle and attempted to steal a handbag from the passenger seat.

1. On 11 September police were also summonsed to a warehouse at Mermaid Beach because of an alleged assault. It was alleged that Mr Hicklin entered the store in an agitated state, ran behind a desk and grabbed the EFTPOS terminal and ripped it from the wires and ran through the store causing a disturbance. He threw various pieces of property around the store and one person was struck with a metal can. Police attended and he had to be capsicum sprayed to be subdued.

1. A further incident occurred on 23 December 2008 at Mermaid Beach. On that occasion Mr Hicklin was knocking loudly and repeatedly on the roller door of an ambulance station in a distressed state. He attempted to smash the rear vision mirror and started to kick the side panels of the ambulance door. Police were called and when they arrived Mr Hicklin was behaving in an irrational and hysterical manner.

1. On 13 August 2009 an incident occurred at an adult shop at Mermaid Beach where Mr Hicklin had entered the shop, thrown items around the floor and was causing a disturbance. He also hit a man in the face with his arm. A further incident occurred on 26 august 2009 at a Coles Express service station at Miami where he kicked a large glass panel on the main door of the service station. Police indicated that Mr Hicklin appeared to be in a panic attack.

1. There was another incident on 22 November 2009 at Bundall when Mr Hicklin was being transported in the back of a vehicle by his carer. He managed to get out of the car and ran into a Shell service station. He ripped a cash register off the counter and threw it on the floor. He also ripped the fax machine and threw it on the floor destroying it beyond repair.

1. On 2 February 2010 police were called to an Ezyway convenience store in Broadbeach. Mr Hicklin was being restrained by his carer when police arrived. It would appear that he had jumped from the carer’s vehicle and run into the store. He then threw a bottle of juice on the ground, moved to the counter and picked up the EFTPOS machine and threw it at the front door. Police indicated that Mr Hicklin was agitated and in need of medical attention. Mr Hicklin has no recall of any of the offences.

The medical reports

1. Professor Harry McConnell in a report dated 17 August 2009 indicated that Mr Hicklin has a long history of epilepsy and has been referred with severe ictal and postictal aggression/violent/behavioural disturbance. Professor McConnell diagnosed complex partial seizures caused cursed seizures. He stated that these seizures were related to brain injury and were caused by a specific seizure focus in the temporal lobe region. He said that that focus is a life long condition.

1. In a further report dated 15 December 2010 Professor McConnell indicated that Mr Hicklin has subsequently developed conversion symptoms affecting his vision. He also makes other diagnoses of complex partial seizures, borderline intellectual functioning secondary to fragile X syndrome which was also associated with sensory integration difficulties and behavioural difficulties. It would appear that Mr Hicklin’s seizures have been witnessed by neurologists. Professor McConnell stated that aggressive behaviour with complex partial seizures is common when people attempt to restrict the movements of a person suffering from complex seizures.

1. Dr Max Williams a neurologist, in a report dated 8 April 2008 indicated that Mr Hicklin has cerebral palsy with right sided weakness and has suffered epilepsy since the age of 15. He considered that it appeared to be primary generalised epilepsy associated with impairment of consciousness and occasionally with tonic-clonic convulsions and post ictal stupor. In such seizures Dr Williams indicated he is not aware of any aura but Mr Hicklin loses consciousness and collapses to the ground. He also stated that he has automatisms in which state he would stare into space and walk around and carry out some automatic actions but would be oblivious to his surroundings.

1. Dr Williams indicated that in post ictal states confusion and drowsiness is normal but aggression can occur with combatativeness which can last for several hours. Dr Williams had indicated that Mr Hicklin had some automatisms for many years. He concluded that the episodes giving rise to the charges were such that Mr Hicklin was either having a seizure or was in a post ictal confusional state. Dr Williams indicated he had witnessed some similar episodes.

1. Dr Williams was of the view that during those episodes Mr Hicklin had absolutely no control whatsoever of his actions and was unaware of what he was doing or the consequences. He considered he was completely and utterly amnesic for the events subsequently.

1. In 2 reports dated 19 November 2010 and 3 June 2011, Dr Andrew Aboud indicates that Mr Hicklin is prone to suffering complex partial seizures, possibly triggered by anxiety, sensory stimuli (such as flashing lights and loud noise) or even suboptimal biological treatment. Dr Aboud considers that there is robust supported evidence for such seizures contained within the broad collateral information, informant histories, specialist medical opinion and the court brief. He did not find any evidence of a psychotic disorder or a mood disorder. Neither did he find any evidence that Mr Hicklin suffered from a personality disorder.

1. Dr Aboud considered that Mr Hicklin was of unsound mind in respect of all of the charges against him. He states that Mr Hicklin suffers from epilepsy and in his opinion was suffering an epileptic seizure at the time of all of the alleged offences.  In his view he was suffering an ictal automatism at the relevant time, such that his actions were unconscious and involuntary. He considers that epilepsy would constitute a mental disease within the meaning of the Criminal Code and the Mental Health Act and that on account of his mental disease he was deprived of the capacity to understand what he was doing, to control his actions and to know that he ought not do the act.

1. Dr Donald Grant, in a comprehensive report dated 8 June 2011, also considers that Mr Hicklin was in the state of an epileptic seizure at the time of the commission of the offences. He considers that Mr Hicklin’s behaviour at the time of his complex partial seizures is similar to that well described in patients with such epilepsy. He considered that whilst the extent of his aggression is somewhat unusual it is nevertheless very well recognised as an epileptic phenomenon. He stated that his aggression can be associated with the confusion brought on by a seizure or could occur in a post ictal phase after the most severe electrical activity when the brain has settled down. In either state Dr Grant advised that Mr Hicklin is clouded in consciousness and not fully aware of his surroundings. He is not able to communicate or respond rationally to his environment. Dr Grant noted that in relation to some of the charges he seems to have responded with severe panic and secondary aggression to noises such as machinery noise or the beeping EFTPOS machines or the noise of sirens. Flashing lights also seem to disturb him at times.

1. Dr Grant noted that Mr Hicklin is unable to communicate during these episodes and cannot be properly directed by others.

1. Dr Grant considers that whilst Mr Hicklin does not suffer from a psychiatric disorder as such, the episodes in which he has offended have occurred during a state of severely impaired consciousness equivalent to a delirium or organic brain syndrome and that these episodes are likely to reoccur. He considers that they are best described as a mental illness under s 27 of the Criminal Code rather than being seen as indications of sane automatism under a different section of the law.

1. Dr Grant considered that at the time of all of the alleged offences Mr Hicklin was suffering from a mental disease under s 27 of the CriminalCode namely a complex partial epileptic seizure producing a state of impaired consciousness equivalent to a state of delirium. He considers that the mental disease was sufficient to deprive him at the time of all of the offences of the capacity to understand what he was doing, the capacity to control his actions and the capacity to know he ought not do the acts.

1. On the basis of the medical reports and the advice of the assisting psychiatrists I am satisfied that Mr Hicklin was of unsound mind at the time of the commission of the 19 offences which occurred between June 2010 and October 2010.  I am also satisfied that the cause of Mr Hicklin’s offending was his mental disease namely his epilepsy. In the 1980 decision of R v Mursic[1] it was held that epileptic automatism such as is evident in the present case is in fact considered to be a disease of the mind for the purposes of s 27 of the Criminal Code. I also agree with the reports of Drs Grant and Aboud and the advice of the assisting psychiatrists that Mr Hicklin was in fact deprived of all three relevant capacities at the time of the commission of the alleged offences.

   [1] [1980] QdR 482

Is a Forensic Order required?

1. In terms of a forensic order Dr Grant indicated that at the time he wrote the report in June 2011 he considered that Mr Hicklin’s management in the community was unsatisfactory. Dr Grant noted that whilst Mr Hicklin was on the correct medication the administration of that medication was unsupervised and there had been no follow up medical appointments to ensure the monitoring of his condition. He stated that Mr Hicklin’s treatment needed to be overseen and supervised.

1. Dr Grant indicated however that if such supervision could not be guaranteed then a forensic order would be required to ensure medical follow up. He stated “This would, in my view be an inappropriate outcome, as a forensic order would not be indicated for any reason other then to ensure medical and neurological follow up. His treatment needs are neurological and medical, not psychiatric.” Dr Grant noted that it was proposed that a Guardianship Order be made with respect to Mr Hicklin and that such an arrangement might be satisfactory.

1. QCAT appointed the Adult Guardian to make decisions in relation to Mr Hicklin’s accommodation, health care, provision of services and legal matters not relating to the adult’s finances or property matters on 4 May 2011. The Public Trustee was also appointed as administrator for all financial matters.

1. Mr Grevell from Disability Services Queensland gave evidence at the hearing in relation to the current arrangements which are in place with respect to Mr Hicklin’s care. He is currently receiving 20 hours of support per week spread over 3 days. The Adult Guardian considers that this is not currently sufficient to meet his needs and further negotiations are taking place in this regard. It would seem that his medication is being monitored for compliance and he has been taken by his carers on two occasions to a general practitioner for assessment. He indicated that the current plan is that he will be regularly reviewed by the treating doctor.  

1. Accordingly Mr Hicklin is currently receiving appropriate medication which is being monitored and supervised. It is also clear that the Adult Guardian is well aware of his needs and will be vigilant in ensuring his needs are met to the greatest extent possible. It would seem clear that Mr Hicklin’s care plan needs to evolve in response to his changing needs and circumstances. There are strategies in place to ensure this occurs. Now that Mr Hicklin has an appointed guardian he has a decision maker who can advocate for him. It is also clear that there is an emergency plan in place should circumstances deteriorate quickly. 

1. The assisting psychiatrists consider that on balance a forensic order would not be indicated for any reason other than to ensure medical and neurological follow up. It would seem that this can be assured by appropriate arrangements being put in place by the Adult Guardian and the Department of Communities, Disability and Community Care Services, both of whom are currently involved. Given how quickly Mr Hicklin deteriorated in 2008 it is important that both these organisations remain vigilant.

1. I am satisfied however that given the current arrangements and the promise of an evolving plan to meet his support needs Mr Hicklin should not be subject to a forensic order. Whilst his care and treatment needs are adequate at the moment I would anticipate there will be a greater capacity to meet his needs into the future as further plans and strategies are put in place.