Re JGC

[2010] QMHC 35

MENTAL HEALTH COURT

CITATION:

Re JGC [2010] QMHC 35

PARTIES:

APPEAL BY THE ATTORNEY GENERAL IN RESPECT OF JGC

PROCEEDING NO:

0215/10

DELIVERED ON:

12 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

(1) The appeal is allowed. 

(2) The decision of the MHRT dated 9 July 2010 is set aside to the extent that conditions 1 (c) and 9 are deleted and condition 2 is amended to require the attendance of 2 staff members.

(3) The stay is dismissed

CATCHWORDS

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND
PROCEDURE – QUEENSLAND – where Attorney-General

appeals decision of Mental Health Review Tribunal confirming limited community treatment in respect of the patient – where Attorney-General submits that the Mental Health Review Tribunal  erred in extending the conditions of the patient’s limited community treatment. – where the Attorney-General submits that the conditions fail to ensure that the patient does not represent an unacceptable risk of absconding and an unacceptable risk to the safety of the patient and others – whether appeal should be allowed or dismissed

COUNSEL:

C Reid for the Defendant
P Scott for the Director of Mental Health
B McMillan for the Attorney-General

SOLICITORS:

Patrick Murphy Solicitor for the Defendant

Crown Law for the Director of Mental Health

Crown Law for the Attorney-General

ANN LYONS J:

1. On 11 June 1999 the Mental Health Tribunal constituted under the Mental Act 1974 found that JGC was of unsound mind at the time of the commission of the offence of murder on 9 November 1998.  JGC was placed on a Forensic Order. 

1. On 9 July 2010 the Mental Health Review Tribunal (MHRT) confirmed that Forensic Order and granted limited community treatment (LCT) in the following terms:

“1.The Patient may undertake treatment or rehabilitation in the community by way of:

a)Escorted absences from the authorised mental health service limited to the grounds of The Park – Centre for Mental Health

b)Escorted absences from the authorised mental health service including open bus trips

c)Unescorted absences from the authorised mental health service limited to the grounds of The Park - Centre for Mental Health for a period of up to 2 hours on any occasion

The limited community treatment is to be progressed on a staged graduated basis to be managed at the discretion of the treating psychiatrist.

2.On escorted absences the patient is to be accompanied by a health service staff member or members, and shall obey their lawful instructions

3.The patient must comply with all appointments for follow up and prescribed treatment, including the taking of prescribed medication and undergoing random tests for those medications, as required by the treating psychiatrist.

4.The patient must not use alcohol or illicit drugs, and must co-operate fully in random medical tests for those substances as required by the treating psychiatrist

5.That the patient not drive a motor vehicle unless permitted to do so by the treating psychiatrist

6.The patient is not to possess any firearm or other offensive weapon

7.The patient is to surrender any current passport he holds which is to be kept at a place directed by the treating psychiatrist

8. The patient is not to travel to an area within 10km of the site of the index offence at the Gold Coast

9. On unescorted absences in 1(c) the patient must be supervised by a responsible adult approved by the treating psychiatrist.

10. The limited community treatment is to be implemented subject to the assessment of the treating psychiatrist that it is appropriate having regard to the patient's mental condition at the time of implementation

1. The Attorney-General has appealed the decision of the MHRT.  In a notice of appeal filed on 13 September 2010, as amended on the day of the hearing, the grounds of appeal are stated as follows;

“The Tribunal erred in extending conditions of the limited community treatment. The conditions fail to ensure that the patient does not represent an unacceptable risk of absconding and an unacceptable risk to the safety of the patient and others for the following reasons: -

a. The patient absconded in November 2001 whilst on leave with the assistance of his parents.               

b.In September 2005 staff located plans of how to abscond in the patient's room.

c.In August 2008 the patient was located with personal items in a back pack when accessing leave, the patient was applying for a birth certificate in the aim of obtaining a

bank account and a Centrelink card was found in his room.

d.The lengthy delay in the patient's application to move out of Queensland has frustrated the patient and his parents.

e.Any unescorted on ground leave accompanied by the patient's parents is opposed considering the assistance the parents rendered to absconding in the past.

f.The patient has only accessed three off ground leave with 2 staff members in the last 12 months.

g.The recent deterioration of the patient's mental state and non-compliance with medications",”

The reasons of the Mental Health Review Tribunal

1. In coming to the decision the Mental Health Review Tribunal referred in its reasons to the fact that the patient was placed on the Forensic Order for the brutal murder of a teenage girl in 1998. The Tribunal also stated that the patient had been in Queensland for about three weeks before the offence and that his family live in Victoria. He has no relatives in Queensland and his support primarily comes from his Authorised Mental Health Service. The Tribunal indicated that the patient has been hospitalised in Queensland since 1998 apart from a period of absconding.

1. The Tribunal noted that the patient has had a lengthy, treatment resistant, fragile illness, namely schizophrenia and that he has not previously shown a deep commitment to his treatment. There have been previous deteriorations in his mental state when not compliant. At the time of the hearing in July the patient’s mental state was stable and he was showing a noticeable improvement in his understanding of his illness and in compliance which was ensured by his depot injection.

1. The treating team and his father who were present at the review tribunal hearing indicated that the patient was the best that they had seen him in a long time. The Tribunal also noted that that was consistent with their observation of the patient. In particular, he was able to discuss issues of relevance in relation to his treatment and indicated that he would recognise when he would become unwell and he would now avoid becoming unwell. The Tribunal stated that this was a notable advance over previous occasions when the patient had appeared before the Tribunal when his willingness to continue treatment was doubtful and he only showed a superficial grasp of the need to continue medication.

1. Dr Carmody, on behalf of the treating team, stated at the Tribunal hearing that six months prior to the hearing the patient had settled a lot, although there had been some depression. The patient was doing well and he was aware of the date and time that he needed to take his medication and was more aware when he needed medication. In particular, the treating team recommended to the Tribunal that the patient have one escort on his leave with a reduction to unescorted absences on the grounds, as this would give him a greater opportunity to be outside.

1. The Tribunal noted that the treating team indicated that with his long-term institutionalisation the patient had lost a lot of his social skills. The treating team indicated to the Tribunal that there had been no reversion and no relapse for quite some time. The treating team noted that the patient was joining in activities and was having urine drug screens monthly, all of which have been negative. In terms of the unescorted leave, the treating team indicated the absences would be on the ground and they would occur when his father visited. They could also be used for the non-government organisation Spiritus on some other occasions. It would also appear that the patient’s brother, [R], might also be able to visit and he would also make use of the absences on the ground without an escort.

1. In coming to the decision in relation to the approval of limited community treatment conditions, it is clear that the Tribunal took into account the submissions from the representative for the Attorney-General. In particular, the Tribunal agreed with the submission of the Attorney-General’s representative that the Forensic Order should be confirmed and they did so.

1. Whilst the representative for the Attorney-General acknowledged the positive six months, the Tribunal was reminded of the serious absconding that occurred at the end of 2001 with the assistance of the patient’s parents. Counsel for the Attorney-General also referred to the letter found in September 2005 which made reference to escape preparations and past issues of substance abuse. Reference was also made to an occasion in 2008 when the patient was found carrying a backpack with personal items in it, which led to the submission that he was possibly going to abscond. The Tribunal noted that the patient had had a long standing application for a move to the forensic health services in Victoria which were still being processed. In her submissions to the Tribunal, counsel for the Attorney-General stated “It was submitted that there were real concerns that the application to move was made some time ago and has not progressed and this might be a possible motive to abscond.” The Attorney-General opposed the patient having unescorted absences supervised by his father, who it was submitted was not a suitable person.

1. In coming to the decision, the Tribunal set out all of the issues as to whether the patient represented an unacceptable risk to his own safety or that of others. The Tribunal’s reasons note the following:

“5. Does the patient represent an unacceptable risk to their own safety or that of others?

The patient is the best he has been for some time. He remains compliant with treatment, however, given the past fragility of his illness, past deterioration through non-compliance, his problematic behaviour some years ago and the severity of his index offence, it was not considered appropriate for him to take voluntary management of his illness.

In respect to Limited Community Treatment, the Tribunal looks to set a framework for Limited Community Treatment which will assist the patient’s treatment by giving discretion to the clinical team to progressively give rehabilitation opportunity to a patient in line with an appropriate clinical response. That is, the Tribunal approves Limited Community Treatment which the patient might sensibly reach within the next review period.

The Tribunal gave considerable thought to the patient's past history of absconding with the assistance of his family. It noted that it was  some eight years ago now, and that the patient voluntarily returned to Queensland, and that the patient's family has shown a continued interest and support of the patient. More significantly in the period around 2006, the patient was accessing unescorted absences supervised by his family on and off the grounds of the hospital. These were ceased not because of any misconduct or failure by the patient, but because of untrue assertions in which led to the patient’s access to absences being limited. Consequently as a focus of media outrage at that time the patient's mental state deteriorated. It has taken some considerable period for him to recover, to the point that the Treating Team proposed that it is appropriate for him to have escorted and unescorted absences on the grounds, supervised by a staff member or a responsible  adult approved by the Treating Psychiatrist, escorted absences off the grounds supervised by one staff member and open bus trips.

The Treating Team have been consistently attentive to the patient's compliance with treatment, and to ensuring his progress at a safe level to both himself and the community. The patient has been compliant with the terms of Limited Community Treatment since the last Tribunal. The Tribunal considered that the patient' s mental state had now reached a level of stability that it could safely contemplate the patient being supervised on the grounds of the hospital by his father or a appropriate approved member of an NGO such as Spiritus, as suggested by the treating team or some other person approved by the Treating Psychiatrist.

The patient' s risk of absconding or violence was said to be low in the Clinical Reports. This is in the circumstances of his residing in High Secure Accommodation and remaining in treatment.

Conclusions of Tribunal

It was noted that whilst the patient did abscond for a long time in 2002, he was not reported to have deteriorated to acts of violence throughout that time. The patient now appears to have the prospect of the return to Victoria under serious consideration, by the Victorian authorities. Whilst this may take some time to resolve this appears to be a factor that motivates him to engage in his rehabilitation and which he does not wish to endanger.

The Tribunal noted the patient's improved mental state, his optimism and collaboration in his treatment, plus his motivation to stay well to improve his chances of a transfer to Victoria. In addition, it noted his father's efforts to educate himself about mental illness and therefore have a better insight into the patient's need to stay in treatment rather than abscond. The current proposal was less Limited Community Treatment than had been available to the patient in 2006, and that leave had proceeded without adverse behaviour by him.

The Tribunal concluded that an expansion of Limited Community Treatment was appropriate in the circumstances.”

Dr Neillie’s Update Report to the Court

1. In an Update Report to the Court Dr Darren Neillie, the Clinical Director of the High Security Inpatient Service at the Park advised that prior to the Mental Health Review Tribunal hearing there had been improvement in the patient’s insight in relation to his ability to verbalise early warning signs of his illness and an appropriate relapse management plan. It was in light of that improvement that the clinical team had recommended that the Tribunal consider granting continued access to escorted limited community treatment with a reduced number of staff escorts in addition to unescorted on ground leave with a responsible adult.

1. Dr Neillie stated that the purpose of recommending an expansion of his limited community treatment was to allow greater access to a range of rehabilitation opportunities whilst still having the supervision of staff off the hospital grounds and the supervision of a responsible adult while on hospital grounds.

1. Dr Neillie stated that following the Tribunal’s decision the patient accessed escorted on ground leave on 12, 19, 28, 29 July and 1 and 4 August without incident. He also had escorted off grounds treatment. He also engaged well in campus activities. Dr Neillie stated however that in the first week of August a change in the patient’s mental state was noted. He became intrusive in his interactions with staff and preoccupied with somatic concerns.

Submissions of Counsel for the Attorney-General

1. Counsel for the Attorney-General, Mr McMillan submitted that the Court must not approve limited community treatment unless it is satisfied that the approval of that treatment would not pose an unacceptable risk to the patient or others having regard to his mental illness. He argued that upon hearing this appeal the burden of the decision-making responsibility in respect of LCT falls entirely and exclusively with this Court, and it ought not be placed back on to the treating team at this time.

1. Counsel submitted that given the clinical evidence, at the least the appeal should be allowed to the extent that the condition relating to unescorted leave is deleted and that if on grounds leave is approved then the patient should be accompanied by two staff members at all times.  

1. Counsel submitted that Dr Nellie’s evidence of the various risks must be considered, in particular the patient’s recent non compliance with oral medication and deterioration in mental state.  Counsel argued that this deterioration can lead to a reduction in the patient’s ability to deal with frustration and an increase in his risk of absconding. 

1. Mr McMillan noted that Dr Nellie rated the patient’s risk of absconding as moderate and that although his last attempt at absconding was some time ago it was nevertheless a serious incident which resulted in no treatment for some months and involved his parent’s assistance.

1. Counsel argued that the patient’s history, his non-compliance with medication and the resultant deterioration in his mental state amount to a significant and unacceptable risk to the community. On that basis counsel argued that the Court can not be satisfied that any level of leave is appropriate. However, counsel argued that if the Court was satisfied that some leave should be granted given the length of time before the matter is next reviewed, it should be restricted to on grounds leave with two staff escorts at all times.

The advice of the Assisting Psychiatrists

Dr Lawrence

1. Dr Lawrence indicated that this appeal highlighted the importance of limited community treatment being implemented subject to the assessment of the treating psychiatrist. She opined that at the time the Tribunal made its decision it was appropriate for the patient’s rehabilitation to progress the LCT conditions available subject to the assessment of the treating psychiatrist. She indicated that this pertained until the patient’s mental state deteriorated, possibly due to some non compliance with oral medication.  She also noted that when the deterioration became evident the treating psychiatrists and team addressed the matters clinically and their management was appropriate and in accordance with good practice.

1. Dr Lawrence noted Dr Nellie’s evidence that he would not reinstate the rehabilitation program in under six to eight weeks, which would be close to the time the MHRT will assess the situation once again.

1. Dr Lawrence considered that on the current evidence it was unlikely that condition 1 (c) would be accessed by the patient.  Therefore there was no need to change the conditions set out by the Tribunal. However if they were to change then she indicated no great disadvantage in treatment and rehabilitation would occur, she continued “I think the evidence is that the risks will vary from time to time according to this man's mental state, but they are being appropriately managed and reassessed on a day-to-day basis by a treating team that appears to know him well and understand his needs”.

Dr McVie

1. Dr McVie considered that the patient has a chronic treatment resistant paranoid schizophrenic illness and his mental state is relatively fragile and appears to be fairly sensitive to medication changes.  She also noted that the patient is going to need to be managed long-term in a high secure mental health service.

1. Dr McVie advised that the conditions implemented by the Tribunal in July were appropriate. She also accepted Dr Nellie’s evidence that condition 1 (c) would most likely not be utilised and if it were to be removed then the other conditions should remain. Dr McVie considered that on-ground leave with a responsible adult would not pose an unacceptable risk. 

1. She advised that Dr Neillie demonstrated an appropriate and conservative approach to his management.  She further stated:

“I would also advise that there needs to be scope in the conditions of limited community treatment to enable the treating team to implement rehabilitation at times when [JGC] is relatively well and able to access such rehabilitation.  I would also advise that it's important that [JGC] is aware of conditions of limited community treatment to decrease the reported frustration at the proposed transfer and the difficulties in knowing what the long-term outcome of his application to move to Victoria is going to be, which may have a very unstable - unsettling effect on his mental state at some point.”

Conclusion

1. It is clear that in an appeal to the Mental Health Court it is not necessary for the appellant to show an error in the reasons of the Mental Health Review Tribunal.  An appeal to this court is an appeal by way of rehearing and this court, therefore considers all of the material that was before the Mental Health Tribunal as well as material which has subsequently been provided. 

1. Pursuant to s 325 of the Mental Health Act 2000 (Qld) (the Act), in deciding the appeal the Mental Health Court may confirm or set aside the decision appealed against. If the Mental Health Court sets aside the decision then the court may make a decision the Tribunal could have made on the review of the application and the decision is taken to be that of the Tribunal.

1. The question therefore is whether this court should make an order on the basis of the evidence before it to approve limited community treatment in the terms as set out in the order of the MHRT dated 9 July 2010.  It is clear that there is new evidence before this Court in relation to the patient’s current mental condition.  That evidence was not available to the MHRT as his condition deteriorated subsequent to that hearing.  The evidence indicates not only that the patient has deteriorated but Dr Neillie does not consider that unescorted on ground leave in appropriate in the current circumstances.  As soon as he deteriorated Dr Neillie adjusted the patient’s access to LCT to ensure that the leave he was accessing was appropriate.  Clearly the LCT conditions the MHRT put in place have worked because LCT has been progressed subject to the assessment of the treating psychiatrist that such LCT was appropriate having regard to the patient's mental condition at the time of implementation.

1. However whilst the Court can make the orders the MHRT could have made when it reviewed the Forensic Order the Court needs to take into account the new information.  Clearly the Forensic Order needs to be confirmed.  The real issue relates to the extent of the LCT which should be allowed and what conditions need to be placed on the LCT.  It is clear that a significant factor before the MHRT was the fact that at the time of that hearing the patient’s mental state had “reached a level of stability that it could safely contemplate the patient being supervised on the grounds of the hospital by his father or a appropriate approved member of an NGO such as Spiritus, as suggested by the treating team or some other person approved by the treating psychiatrist.”

1. That is not the current evidence before this Court.

1. In coming to the appropriate decision the Court must be satisfied that the requirements of s 204 of the Act have been satisfied.  In particular LCT must not be approved unless the Court is satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability.

1. On the current state of the evidence unescorted leave should not be approved as the Court cannot currently be so satisfied.  Whilst the patient has once again stabilised and is doing ‘well’ he is not yet at the point where unescorted abscences would be allowed by his treating psychiatrist given his current mental state. I also consider that escorted absences should require 2 staff members until the further review by the MHRT in January 2011.

1. In all other respects I consider that the framework for Limited Community Treatment set by the MHRT is appropriate and will assist the patient’s treatment by giving discretion to the clinical team to progressively give rehabilitation opportunity to a patient in line with an appropriate clinical response. 

1. Accordingly the appeal is allowed.  The decision of the MHRT dated 9 July 2010 is set aside to the extent that conditions 1 (c) and 9 are deleted and condition 2 is amended to require the attendance of 2 staff members.