Re JTG
[2002] QMHC 4
•18 October 2002
MENTAL HEALTH COURT
CITATION: | Re JTG [2002] QMHC 004 |
PARTIES: | REFERENCES BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JTG |
PROCEEDING NO: | 144/2002 |
DELIVERED ON: | 18 October 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 October 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS | Dr D A Grant Dr J F Wood |
FINDINGS AND ORDERS: | 1. That when the alleged offences of burglary and wilful damage were committed, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of Mental Health Act2000; 2. There is reasonable doubt that the defendant committed the offence of common assault, that doubt not existing as a consequence of her mental condition; 3. That the defendant is unfit for trial; 4. That the unfitness for trial is of a permanent nature; 5. That a forensic order not be made. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant Mental Health Act 2000 (Qld), Schedule 2 |
COUNSEL: | J Thompson for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health |
WILSON J: JTG has been charged with burglary on 23rd March 2001 and wilful damage on 24 May 2001. I am satisfied that at the time of those alleged offences she was not suffering from unsoundness of mind as described in the Mental Health Act2000.
She has also been charged with common assault on 21 May 2001. I am satisfied that there is reasonable doubt that she committed that offence and that the doubt is not a consequence of her mental condition.
I am satisfied that [the defendant] is unfit for trial and that the unfitness is of a permanent nature.
The question then is whether the Court ought to make a forensic order. The making of such an order was supported by Mr Rutledge for the Director of Public Prosecutions as being in the interests of the protection of the community. Mr Tate for the Director of Mental Health and Mr Thompson for the defendant both submitted that it was unnecessary.
[The defendant] suffers from an intellectual disability. She is not mentally ill. She was born in May 1980, so that she is now 22. As a child she came under the care of the Department of Family Services. The Adult Guardian was appointed to manage her affairs on 18 January 2001.
After the offences which are presently before the Court were allegedly committed she spent six to eight weeks in the Women's Correctional Centre. Then she was released on bail. As I understand it, there were conditions of her bail that she be placed in the Basil Stafford Centre and that she be supervised by two persons. She has been residing there since and technically she is being managed by Disability Services Queensland. The Basil Stafford Centre is not a mental health facility, but a facility for the intellectually disabled.
Since she has been in the Basil Stafford Centre there have been behavioural problems. Staff have been confronted regularly and have had to retreat for their own safety. This happened most recently only a day or so ago. According to Dr Spelta - and I quote from his report of 21 February 2002:
"Her mental retardation is lifelong and is not responsive to treatment. Her borderline personality traits are an expression of her delayed development, and I fear of permanently delayed development, and I think likely to endure for many years if not lifelong and that the treatment most likely to be of benefit would include ongoing support, containment and behaviour modification programs under the auspices of Disability Support Services Queensland with support and input from other health providers as indicated."
He went on:
"She will require extensive resources if she is to be maintained in the community. Her mental retardation, delayed emotional development, poor impulse control and past history suggest she is at risk of re-offending. Her primary problem is mental retardation. Attempts at helping her would need to be directed through Disability Services. A prison term is likely to be most difficult and traumatic and community service is not viable because of her limited understanding and compliance."
In a further report dated 3rd October 2002 Dr Spelta said:
"Proposed treatment is mainly containment with a view to reinforcing and rewarding appropriate behaviours. Her intellectual disability renders psychotherapeutic input quite ineffective. Psychotropic medication would only be indicated as an empirical trial for decreasing aggressive and violent behaviours akin to a chemical straightjacket."
The Court received evidence from Mr Paxton and Ms Whitman of the Adult Guardian's Office to the effect that that office is negotiating with Disability Services Queensland a support package for [the defendant]. The proposal is that she be one of two persons in a duplex at [location name]. There would be 24 hour supervision of [the defendant] by one person on a shift basis. The care would be provided through a private care organisation, [company name].
There is evidence before the Court that [the defendant] may benefit from an environment less restrictive than that in which she is presently placed. However, there is reason for concern at the proposal to reduce the level of supervision from two to one in view of the ongoing behavioural problems.
In determining whether to make a forensic order the Court must take account of the seriousness of the offences, the person's treatment needs and the protection of the community.
The offences were not trivial, but they were not at the worst end of the spectrum. The burglary involved entering a dwelling house and stealing a quantity of jewellery, a portable compact disc player, a set of car keys, a quantity of video tapes, a quantity of compact discs and a hip flask.
The wilful damage involved the destruction of six mattresses, the property of the Commissioner of Police. And, of course, the assault is in reasonable doubt.
As to her treatment needs, given the nature of her disability and the medical evidence to which I have already referred, it would seem that there would be nothing to be gained by detention in an authorised mental health service.
The real issue is whether there would be anything to be gained for the protection of the community by the making of a forensic order.
What is proposed is detention in an authorised mental health service for someone who is not mentally ill. It would be accompanied by the approval of limited community treatment to the effect that she could live elsewhere with the consent of the treating psychiatrist. In practical terms the living arrangements would probably be the same, with or without a forensic order.
It seems to me that Disability Services Queensland is the agency with expertise in and responsibility for caring for and supervising the intellectually disabled.
Dr Wood and Dr Grant, the assisting psychiatrists, gave advice in Court. Dr Wood was concerned at the proposal for only one staff member but noted that psychiatry did not have much to offer this defendant. Dr Grant considered that a forensic order would add nothing; indeed, it may muddy the waters and confuse the lines of authority.
In short, I am unconvinced that a forensic order would advance the protection of the community in this case. I share the assisting psychiatrists' concern at the reduction from two staff members to one in the proposal presently before Disability Services Queensland. However, that proposal is still in the negotiation stage and I would hope that the proceedings today would be taken into account in finalising the terms of any agreement.
I decline to make a forensic order.
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