Re Jga

[2013] QMHC 3

MENTAL HEALTH COURT

CITATION:

Re JGA [2013] QMHC 3

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL FOR QUEENSLAND
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by Election

JGA

Respondent

PROCEEDING NO:

0038 of 2012

DELIVERED ON:

6 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Delivered ex tempore on 6 May 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr Khoo
Dr Varghese

FINDINGS AND ORDERS:

The appeal is dismissed. 1.       

The decision of the Mental Health Review Tribunal of 14 December 2011 is confirmed.2.       

The Forensic Order dated 6 June 2011 is revoked. 3.       

CATCHWORDS:

MENTAL HEALTH – APPEAL AND NEW TRIAL –  APPEAL BY WAY OF REHEARING – appeal against decision of Mental Health Review Tribunal revoking a Forensic Order – where respondent diagnosed with drug induced mania – where respondent did not have a criminal history prior to the index offences – where there was no further offending after the index offences – whether respondent suffered a mental illness – whether the Tribunal should have been satisfied that the respondent represented an unacceptable risk to the safety of the appellant or others

Mental Health Act 2000 (Qld), ss 203(6); 204

COUNSEL:

L Syme for the Attorney-General
J Tate for the Director of Mental Health
The respondent appeared on his own behalf

SOLICITORS:

Crown Law for the Attorney-General
Crown Law for the Director of Mental Health
The respondent appeared on his own behalf

A LYONS J:

1. This is an appeal filed on 15 February 2012 by the Attorney-General in relation to a decision of the Mental Health Review Tribunal (MHRT) dated 14 December 2011. On that date the MHRT revoked a Forensic Order which had been made by this Court on 6 June 2011. On that date JGA had been found to be of unsound mind in relation to one charge of assault and one count of creating a disturbance in premises to which a licence or permit relates. Both offences were alleged to have occurred on 27 October 2010.

1. The Court on that occasion had the benefit of the opinions of Dr Scott and Dr Albrecht. Dr Scott opined that at the time of the alleged offences, JGA had an untreated mental illness which deprived him of the capacity to know that he ought not do the act. He also indicated that JGA was not intoxicated and that any dispute as to the facts arose as a result of the mental condition of JGA. Dr Scott also opined that JGA had a history of psychotic illness and that the diagnosis was a schizoaffective disorder. Dr Scott considered that JGA was chronically impaired in his judgment and had no insight into his psychotic illness or the need for medication. He indicated there was a clear need for a Forensic Order.

1. Dr Albrecht indicated that whilst it would appear that JGA was aware of his actions and knew what he was doing, what he was doing was based on his underlying major mental disorder at the time and he was hypomanic. He considered that as such, he was deprived of the capacity to understand what he was doing and the capacity to control his actions, as well as the capacity to know the difference between right and wrong. Dr Albrecht agreed with Dr Scott that it did not appear that JGA was intoxicated at the time. The assisting psychiatrists on that occasion considered that a Forensic Order was required and that there should be a “no use of alcohol” condition along with a “non-contact” condition with the complainant. The Court was therefore satisfied that JGA was of unsound mind at the time and that a Forensic Order was required.

1. When the MHRT reviewed that Forensic Order six months later, the MHRT had the benefit of a report from JGA’s treating psychiatrist, Dr Devineni, who indicated that she had been the treating psychiatrist for two months and that the most likely diagnosis would appear to be bipolar affective disorder type 2, most likely consisting of mild to moderate depressive episodes and a possible hypermanic episode in 2010 leading to the index offence. Dr Devineni considered that at the time of her assessment, JGA had no formal thought disorder or any delusions and no evidence of any perceptual abnormalities. She considered that his social judgment was good and he had some insight into his illness.

1. She indicated that in terms of his current treatment, JGA was not on any medications and his treatment was limited to ongoing case management and contact with the treating psychiatrist every four weeks. She indicated that he had had an admission for over 10 days in November 2011 and was assessed closely for any symptoms of mania or psychosis and that there was no evidence of any such symptoms. She also indicated that the risk assessment by CFOS in relation to future violence indicated that JGA was within the low to moderate range. The MHRT therefore considered that the material before them indicated that JGA’s circumstances were stable, that he was successfully living on his own in his own unit and that there had been no further problems with management. It was also considered that JGA was now engaging well with the treating team and that their sole management tool was encouragement. The evidence indicated that JGA would seek private medical assistance when it was required.

1. In relation to risk, the MHRT noted that there had been no adverse incidents since the index offences and there had been no alcohol abuse and reduced cannabis usage. Accordingly, the MHRT was satisfied all of that evidence indicated that, having regard to his mental illness, JGA does not represent an unacceptable risk to his safety or that of others.

1. Accordingly, the MHRT revoked the Forensic Order.

1. The Notice of Appeal stated that the MHRT review on 14 December 2011 was the first review of the Forensic Order, which had been made six months earlier. It also noted that JGA has limited insight into his illness and the need for medication, he still uses cannabis regularly and that his medication had only been ceased in November 2011. The Grounds of Appeal also stated that the treating psychiatrist did not recommend revocation of the order, but rather considered a further period of assessment was required in order to monitor the effects of illicit substances on JGA’s mental state. The appellant argued that the MHRT ought not have been satisfied that JGA was no longer an unacceptable risk to the community or himself.

1. When the appeal came before this Court on 12 June 2012, the major issue was whether, in light of Dr Devineni’s report, JGA was in fact suffering from a serious mental illness. In particular, JGA maintained that he was intoxicated at the time and that he did not have a mental illness. Accordingly, the matter was adjourned until an independent CEO could be obtained. The advice of the assisting psychiatrists was that there should be an independent psychiatric review. JGA agreed with the adjournment.

1. In a letter to this Court dated 10 April 2013, JGA disputed that he has had frequent psychiatric admissions and he does not consider there is any evidence that he suffered from a longstanding mental illness prior to October 2010. JGA considered that the Forensic Order was lifted because after a full investigation, his treating psychiatrist found there was no evidence of a mental illness and accordingly, he did not fulfil the criteria for a Forensic Order.

1. An independent assessment has been subsequently conducted by Dr Michael Beech. In a report dated 7 April 2013, Dr Beech indicated that JGA is a 55 year old man who is now disputing a diagnosis of mental illness that was made in 2010 when he was admitted to hospital from the watch house. Dr Beech considered that the material strongly indicates that JGA’s presentation at the time of the offences and during his subsequent admission points to a manic elevation in mood. He is considered disorganised, disinhibited, talkative with pressure of speech, irritable, thought disordered and voicing, at times, grandiose and persecutory ideation. Dr Beech considered that the file notes, which were supported by regular contemporaneous psychiatric assessment, indicate mania rather than acute intoxication, substance withdrawal or other purely physical, organic causes.

1. Dr Beech also noted a long history of drug use that went back to at least 1984 and predated his motor vehicle accident in 1986. Dr Beech noted there was evidence of earlier depressive episodes and two presentations in 1987 for what appears to have been brief psychosis in the context of drug use. He noted they were characterised by grandiose thinking and confusion. Importantly, he noted that they were transient disorders. He also noted that over the years there has emerged a religious theme and that theme varies between a culturally inappropriate and self-serving justification for cannabis use on the one hand and a frankly bizarre delusional belief that comes out in unguarded moments, probably while his mental state is affected by drugs. He considered that mixed in with this is a non specific personality disturbance, which has significant narcissistic traits.

1. Dr Beech ultimately considered that there were two possible broad diagnostic options:

1.   The first is that JGA has a mixed personality disorder with narcissistic traits that deteriorates into a manic psychosis when he is affected by substances. Dr Beech considered that that would explain his brief psychotic presentations and it also would explain the level of confusion that is seen when he is psychotic. He considered that this is consistent with earlier accounts, and would also explain his relatively rapid resolution of symptoms on the ward and the absence of symptoms off medication.

2.   Alternatively, the second diagnosis is that he has a mental illness namely schizoaffective disorder, which at times deteriorates into frank psychosis.  Dr Beech considered that this would explain his overall social decline, his mixed symptoms and his ongoing disinhibition.

1. Dr Beech’s opinion was that the first option is the more likely diagnosis and that it was a drug induced mania which was present at the time of the 2010 offences. He noted that his presentation on 28 October 2010 was that he was quite florid and notably confused but settled within a week or so. He appeared to have had an abrupt onset and cannabis was detected in his urine. He noted that subsequent assessments have not found much in the way of illness.

1. I note that this first option is also supported by the advice given by Dr Varghese.

1. Dr Beech noted that when he saw JGA in September 2012, he was difficult to engage at interview. Dr Beech considered that he appeared elevated and disinhibited and his affect seemed slightly irritable. Dr Beech noted he frequently voiced distain for psychiatrists generally and that the interview was punctuated with narcissistic assertions that he was entitled and superior to others.  Dr Beech noted that as the interview progressed, he became “tangential and at times over inclusive”. He noted that there was a constant denial of mental illness, psychosis or any other psychological disturbance. He also minimised the use of narcotics and earlier mood disturbances and hospital admissions.

1. Paradoxically, Dr Beech noted that JGA was preoccupied with having been intoxicated at the time of the offences and at times there was an argumentative tone and a sense of aggrievement.  Dr Beech considered that the presentation in his rooms in 2012 was a hypermanic one which was provoked by ongoing use of cannabis. He noted that in a ward setting, he would seem settled and contained. Dr Beech considered that the distinction between the two diagnostic options is not clear and that it would take a period of assessment in the absence of drug use to clarify the matter. He also noted that the two options are not necessarily mutually exclusive. This is, JGA may have a schizoaffective disorder that is unmasked by drug use. However, Dr Beech considered that he was more inclined to diagnose a simple drug induced manic state.

1. As I have stated, that is supported by the advice of Dr Varghese.

1. Dr Khoo, however, advises that it is not possible to exclude an Axis 1 diagnosis and she would advise that she can not exclude a schizoaffective disorder, although noting it could be a drug-induced mania.

1. An appeal to this Court is an appeal by way of re-hearing.  No error needs to be shown in the decision below.  This Court should make its decision based on the material that was before the MHRT as well as the new evidence and material which has been presented to this Court.  This Court has the benefit of the extensive report by Dr Beech. In that report, Dr Beech has considered extensive historical material and examined in greater detail some of those background factors. Accordingly, on the basis of that report, I am satisfied that JGA had a diagnosis of a drug-induced mania at the time of the offences.  The clear advice of Dr Beech and Dr Varghese is that there is no mental illness without the presence of drugs.  I also note that JGA’s behaviour is compounded by his severe personality disorder and his chronic drug use. There are some concerns, however, that there could be an underlying mental illness which is exacerbated by this use of drugs.

Is a Forensic Order Required?

1. In terms of whether a Forensic Order is required, there is no doubt that the MHRT decision was made in December 2011, which is 18 months ago, and that the index offences were some two and a half years ago.  The evidence indicates that there have been no further admissions to hospital and that there have been no exacerbations in relation to his behaviour. 

1. The Mental Health Act 2000 (Qld) (the Act) provides that this Court may make any decision which the MHRT could have made. The Act requires that the MHRT review a forensic patient's mental condition essentially at six monthly intervals. In coming to a decision, the MHRT must decide whether to confirm or revoke a Forensic Order for a patient. Section 203(6) of the Act provides that, in making a decision, the MHRT, and therefore this Court when hearing appeals, must have regard to JGA’s mental state and psychiatric history, each offence leading up to his becoming a forensic patient, his social circumstances and his response to treatment and willingness to continue treatment.

1. Section 204(1) of the Act provides that the MHRT, and hence this Court, must not revoke the Forensic Order or approve Limited Community Treatment unless satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others having regard to the mental illness of the patient.

1. Having considered all of the material, particularly the report of Dr Beech and the advice of the assisting psychiatrists, I am satisfied that a Forensic Order is not required.  I am satisfied that the Forensic Order should be revoked because I am satisfied that JGA does not represent an unacceptable risk to the safety of himself or others.  There has been no further offending, and I note that there had been no criminal history prior to the index offences which occurred in 2010. 

1. Accordingly, the appeal by the Attorney General is dismissed and the decision of the MHRT of 14 December 2011 is confirmed.

ORDERS:

1.          The appeal is dismissed.

2.          The decision of the Mental Health Review Tribunal of 14 December 2011 is confirmed.

3.          The Forensic Order dated 6 June 2011 is revoked.