Re Ijs
[2005] QMHC 2
•24 February 2005
MENTAL HEALTH COURT
CITATION:
Re IJS [2005] QMHC 002
PARTIES:
REFERENCES BY THE DIRECTOR OF MENTAL HEALTH AND THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF IJS
PROCEEDING NO:
0009 of 2003
DELIVERED ON:
24 February 2005
DELIVERED AT:
Brisbane
HEARING DATE:
18 February 2005
JUDGE:
Wilson J
ASSISTING PSYCHIATRISTS:
Dr D A Grant
Dr J F Wood
FINDINGS:
ORDERS:
1. That the defendant was not of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld) at the time of any of the alleged offences;
2. That the defendant is unfit for trial;
3. That the unfitness for trial is of a permanent nature.
That the defendant be detained as a forensic patient in the Royal Brisbane Hospital and Royal Women’s Hospital and District Authorised Mental Health Service for involuntary treatment and care.1)
Approval of limited community treatment in the nature of “more than overnight” leave, at the discretion of the authorised psychiatrist, to commence immediately on the following conditions:-2)
(1)that the defendant reside at a place approved in advance in writing by the authorised psychiatrist;
(2)that the defendant comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
(3)that the defendant co-operate fully in random medical tests for alcohol and illicit drugs as required by the authorised psychiatrist;
(4)that the defendant attend all follow up appointments and inpatient care as required by the authorised psychiatrist;
(5)that the defendant not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant has been charged with a large number of dishonesty and property offences, as well as several drug offences – where defendant has a long history of cannabis abuse and dependence – where defendant has the HIV virus – where defendant has permanent brain damage – where expert psychiatric opinion is that defendant’s ongoing abuse of cannabis is exacerbating his deficits – where defendant has no desire or intention to alter pattern of habitual offending and cannabis use – where defendant is unable to retain things he is told for more than 30 minutes or to process what he is told – whether defendant is fit for trial – whether to make a forensic order.
Mental Health Act 2000 (Qld), s 288(3)
Kesavarjah v R (1994) 191 CLR 230 at 243, cited
R v M [2002] QCA 464, applied
R v Presser [1958] VR 45 at 48, appliedCOUNSEL:
C Morgan for the defendant
J Tate for the Director of Mental Health
S Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental HealthThe Director of Public Prosecutions
WILSON J: IJS has been charged with a large number of dishonesty and property offences, as well as several drug offences, allegedly committed in sprees between October 1999 and January 2004. Particulars of the offences are set out on schedules to the references by the Director of Mental Health filed on 9 January 2003 and by Legal Aid Queensland filed on 17 February 2004.
On the material before the Court there is no question of his having been of unsound mind at the time of any of the alleged offences. The issue for determination is his fitness for trial.
The defendant was born on 8 November 1972. He has a long history of cannabis abuse and dependency since his early adolescence. He also has a past history of amphetamine use. As he grew up his family life was turbulent, and his behaviour became anti-social. He spent time in a youth detention centre and at Boystown. As a young adult his employment history was extremely patchy apart from brief work as a shop assistant. He has a lengthy criminal history of offences not dissimilar from those with which he is presently charged.
In about 1992 the defendant contracted the HIV virus. In about 2000 he contracted cerebral toxoplasmosis, a protozoan (parasite) infection precipitated by immune deficiency as a component of HIV infection. This caused an acute delirium which lasted some time and required hospitalisation and treatment with antibiotics and antiviral drugs. The cerebral toxoplasmosis caused permanent brain damage, in particular to the thalmus and areas around it. His primary deficits relate to memory recall – particularly semantic recall but also episodic memory; as well, he has some impairment of executive functioning. The defendant may also have an AIDS dementia (suggested by some generalised cerebral atrophy revealed on a brain scan); if he has, this is presently controlled by compliance with anti-retroviral medication.
The Court received evidence from 2 psychiatrists – Dr Jeremy Butler (who has been the treating psychiatrist since late 2001) and Dr Peter Fama (who has examined the defendant several times for the purposes of these and earlier proceedings). Both had written more than 1 report, and both gave oral evidence. There was also a report by Ms Tracey Mellifont, a psychologist, who assessed the defendant in February 2002.
According to Dr Butler, the defendant’s cognitive impairment was unambiguous during periods of initial assessment during 2001 and 2003. As I understood his evidence, any improvement attributable to the brain’s healing from the effects of the acute infection occurred some time ago, and the organic brain damage is now permanent. The defendant’s ongoing abuse of cannabis seems to be exacerbating his deficits. In early 2004 he spent 3 or 4 months in custody on remand, when he presumably did not have access to cannabis, and when there was an associated improvement in his cognitive functioning.
Both Dr Fama and Dr Butler considered that the defendant is an habitual offender and an habitual cannabis user with no intention or desire to alter either pattern of behaviour. Dr Fama referred to his nonchalant attitude, which is part of his brain damage syndrome. Dr Butler accepted that the defendant’s brain damage has had some effect on him, but did not accept that he was “completely free from responsibility in his wanting to go out and use an illicit substance.”
This Court has to consider the effect of the defendant’s deficits on his fitness for trial. The expression “fit for trial” is defined in the schedule to the Mental Health Act 2000 as:
“fit to plead at the person’s trial and to instruct counsel and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.”
Fitness to plead and to instruct counsel are to be considered against the minimum standards set out by Smith J in R v Presser [1958] VR 45 a 48, namely the ability –
(1)to understand the nature of the charge/s;
(2)to plead to the charge/s and to exercise the right of challenge;
(3)to understand the nature of the proceedings, namely, that it is an inquiry as to whether he committed the offence/s;
(4)to follow the course of the proceedings;
(5)to understand the substantial effect of any evidence that may be given in support of the prosecution; and
(6)to make a defence or answer the charge/s.
See Kesavarjah v R (1994) 181 CLR 230 at 243; R v M [2002] QCA 464. In the present case the matters of concern are the defendant’s ability to follow the course of a trial and to adequately instruct counsel.
The defendant claims no memory of most if not all of the incidents of allegedly offending behaviour. Of course, there are many defendants, who are not brain damaged, who do not remember incidents in which they allegedly offended, and that in itself does not make them unfit for trial. Of significance in the defendant’s case are his deficits in the areas Dr Butler described as verbal recall and semantic memory. He is unable to retain things he is told for more than 30 minutes at most and he is unable to process what he has been told. He has what his counsel described as a very feeble grasp of the details of events that are outlined and explained to him. These deficits would impact directly on his ability to understand what was going on in a trial and to instruct counsel.
Dr Fama considered the defendant unfit for trial, although he conceded it was a marginal case. He did not think that abstinence from cannabis use would produce a sufficient improvement to render him fit for trial. In light of the improvement associated with his presumed abstinence from cannabis while on remand, Dr Butler considered him fit for trial.
I am unpersuaded that the defendant is fit for trial. He has significant deficits attributable to organic brain damage. While those deficits may be exacerbated by cannabis use, they are independent of it. I accept the opinion of Dr Fama, who has very considerable experience in observation and participation (as an expert witness) in criminal trials, that abstinence from cannabis (if that were attainable) would not make him fit for trial.
During the course of submissions there was discussion of the large number of charges the defendant is facing, and of the possibility of a criminal court’s dealing with them at least in batches, if not individually. Courts are increasingly flexible in procedural matters, and in appropriate cases should, and do, make accommodations for disadvantages suffered by defendants. However, this is a case where even if the charges were dealt with seriatim, the defendant would be unable adequately to follow the course of a trial and to instruct counsel.
I find the defendant unfit for trial, and permanently so.
Should the Court make a forensic order? The relevant considerations are the seriousness of the offences, the defendant’s treatment needs, and the protection of the community: Mental Health Act s 288(3).
The number of offences is large (approximately 45); many involve house breaking, comparatively minor theft, and or credit card fraud. The community would rightly see this type of behaviour as serious and warranting restraint.
On the other hand, the defendant does not have a mental illness requiring psychiatric treatment, and by its very nature a forensic order would be for detention to a psychiatric unit with or without leave to be in the community. He no longer lives exclusively in his family home (where there was conflict) and has recently been living primarily with a family acquaintance who has provided a structured supportive living environment. He has a specialist HIV physician who reviews him frequently, and he is being supported and monitored by health professionals from a network of services, who undertake medical and psychosocial assessments and case management discussions facilitating referral for reassessment or intensive counselling as required.
There are various drug detoxification and rehabilitation programmes in hospitals and the community, but they cannot keep up with demand, and admission generally depends upon an applicant’s consent. The defendant has evinced no wish or intention to cease his cannabis use.
The consensus of medical opinion was that the most a forensic order could realistically achieve would be an element of control and a mechanism for bringing the defendant into hospital from time to time to “dry out” from cannabis abuse. It was acknowledged that in these times of beds shortage in acute psychiatric units some authorised mental health services may not welcome such admissions. However, that is the only form of restraint which this Court can impose.
Balancing these considerations, I have determined to make an order for the defendant’s detention as a forensic patient in the Royal Brisbane Hospital and Royal Women’s Hospital and District Authorised Mental Health Service for involuntary treatment and care.
I approve limited community treatment in the nature of “more than overnight” leave, at the discretion of the authorised psychiatrist, to commence immediately on the following conditions:-
(1) that he reside at a place approved in advance in writing by the authorised psychiatrist;
(2) that he comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
(3) that he co-operate fully in random medical tests for alcohol and illicit drugs as required by the authorised psychiatrist;
(4) that he attend all follow up appointments and inpatient care as required by the authorised psychiatrist;
(5) that he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
I authorise release of the transcript of this proceeding and copies of the reports of Drs Fama and Butler to –
(1) the authorised psychiatrist and the treating team;
(2) Dr Hugo Rée, AIDS Medical Unit, 290 Roma Street, Brisbane; and
(3) the Mental Health Review Tribunal.
I direct that those persons be given copies of my reasons for decision in this matter.
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