Re JEP

[2006] QMHC 10

MENTAL HEALTH COURT

CITATION:

Re JEP  [2006] QMHC 010

PARTIES:

APPEAL FROM THE MENTAL HEALTH REVIEW TRIBUNAL IN RESPECT OF JEP


ATTORNEY-GENERAL OF QUEENSLAND
(appellant)
v
DIRECTOR OF MENTAL HEALTH
(respondent)

PROCEEDING NO:

No 50 of 2006

DELIVERED ON:

20 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2006

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

The appeal against the decision of the Mental Health Review Tribunal to revoke the forensic order is dismissed

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where person charged with murder – where on appeal from the Mental Health Review Tribunal to the Court of Appeal it was found that the person suffered from natural mental infirmity – where person placed on forensic order – where forensic order later revoked by Mental Health Review Tribunal on basis that person did not suffer from a mental illness or intellectual disability – whether person still has a natural mental infirmity – whether revocation of forensic order was appropriate

Mental Health Act (Qld) 2000, s 203, s 204

Re Bromage [1991] 1 Qd R 1

COUNSEL:

Mr Isdale for the Attorney-General of Queensland
Mr Tate for the Director of Mental Health

SOLICITORS:

Crown Law for the Attorney-General of Queensland
Crown Law for the Director of Mental Health

1. HOLMES J:  This is an appeal by the Attorney-General against a decision of the Mental Health Review Tribunal made on 20th December 2005 to revoke a forensic order made in respect of JEP on 18th February 2000.  JEP had been charged with the stabbing murder of her de facto husband on 11th February 1996 and attempted murder or, alternatively, unlawful wounding of another man on 7th July 1998.  On both occasions, she was severely affected by alcohol.

1. The material which seems to have been put to the Mental Health Tribunal, as it then was, and subsequently to the Court of Appeal, included a report of Dr Fama, who considered that JEP did not suffer from mild mental retardation.  He estimated she would be in the 70 to 85 full scale IQ range, so as to make her borderline; but that the combination of that with alcohol hallucinosis had amounted to a natural mental infirmity depriving her of the necessary capacities.

1. Dr Kingswell, after carrying out some problem-solving exercises with JEP, concluded that she was mildly intellectually impaired. Dr Field, a neuro-psychologist, administered the usual battery of tests and found that JEP full scale IQ was 73 or borderline; but she pointed out that her functional capacities were in fact likely to have been lower, that her memory and cognition would have been adversely affected by alcohol.

1. The Mental Health Tribunal found that JEP was not of unsound mind or suffering from diminished responsibility in relation to the murder and not of unsound mind in relation to the other charge.  It seems, although that decision is not before me, that the Tribunal was prepared to accept a natural mental infirmity, but it was a question of the interplay with alcohol that precluded the finding. 

1. On appeal, the Court of Appeal applied Re Bromage to overturn that decision in relation to the murder charge and subsequently the attempted murder charge was discontinued.  The Court clearly did act on the basis that JEP had a natural mental infirmity.  It reconciled the evidence of Dr Fama and Dr Kingswell by attributing to them the same view said in different terms: namely, that the voluntary consumption of alcohol by the appellant intensified the effect of the natural or mental infirmity.  JEP was subsequently admitted to the John Oxley Memorial Hospital and was discharged from in-patient care in November 2004. 

1. The Mental Health Review Tribunal revoked the forensic order on the basis that JEP was exhibiting no mental illness or intellectual disability.  It is that decision which is challenged and I am invited to rehear the matter on the basis of the evidence before the Tribunal and on the basis of Dr Leong's evidence given today. 

1. The appeal ground as stated in the notice of appeal was that there was insufficient evidence before the Tribunal upon which it could properly be satisfied that the patient did not suffer from a mental illness or intellectual disability.  There is reference made to Dr Leong's saying he would have liked a longer period of assessment before committing to his approach, which was to advise the Tribunal that JEP did not suffer from a mental infirmity.

1. Mr Isdale invites me to proceed on the basis that there was still a natural mental infirmity which requires the application of Section 203 and 204 of the Mental Health Act.

1. Dr Leong, as I have said, has given evidence here this morning.  JEP was a patient of his for about a year.  She has not been seen since either the end of last year or early this year and he understands her to be living with a relative near Lismore.  While under his care, she had the assistance of a case manager to ensure that she had secure accommodation and relationships with people who would not lead her back into a drinking lifestyle.  He says that if she did return to a drinking lifestyle, she might neglect her physical health; she suffers from hypothyroidism and diabetes.  He expressed a similar view to that expressed to the Tribunal.  He does not think she has mild mental retardation.  Her level of functioning, he says, has seemed to him average or below average but not significantly impaired.  She has lived independently.  He found she could budget and could manage her personal safety.

1. It seems to me that it is one of those cases in which there is scope for a variation in the level of infirmity so that what may have amounted to a natural mental infirmity five years ago may no longer be the case.  This always was a marginal case.  It is clear that as a matter of pure psychometric reading, JEP was not within the mild mental retardation range and, hence, most unlikely to attract on that basis alone a finding of natural mental infirmity.  What seems to have made the difference is her actual level of functioning and that, as I have discussed with counsel, does seem to me an area which may fluctuate.  Clearly enough, with an improved and more regulated lifestyle, those functioning levels can improve, and it does seem to have been the case with JEP.

1. In those circumstances, the clinical opinion of Dr Leong is convincing, as it might not have been if a more extreme psychometric result had been reported in the first place.  It seems to me that his advice is entirely acceptable and is not challenged.  The Tribunal, in my view, was entitled to include that JEP was not suffering from a mental infirmity or a mental illness so as to provide the foundation for a continuing forensic order.  With the assistance of Dr Wood and Dr Lawrence, I reach the same view. 

1. I would say, in any event, even had I reached a different view, having regard to the factors in Section 203(6) and the advice given by Dr Leong to the Tribunal, I should have thought that revocation of the forensic order was appropriate.  Turning to the restriction in Section 204, the risk identified here in the case of JEP is one really to herself, that her health may deteriorate if she were to return to drinking.  That is a real risk, there is no doubt about it, but it seems to me that it is not an unacceptable one given the lifestyle that she has managed to maintain for the past few years and the fact that she is in the company of relatives and not adrift somewhere; so that I would, in any event, have thought it appropriate to revoke the order.

1. I dismiss the appeal.