Re KMV

[2010] QMHC 33

MENTAL HEALTH COURT

CITATION:

Re KMV [2010] QMHC 033

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL FOR QUEENSLAND
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by Election

KMV

Respondent

PROCEEDING NO:

No 0243/10

DELIVERED ON:

9 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDERS:

   [1]      The appeal is allowed

   [2]      The decision of the Mental Health Review Tribunal dated 2 September 2010 is set aside.   

   [3]      The Forensic Order of 3 September 2009 is reinstated.

CATCHWORDS

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

appeals against a decision of the Mental Health Review Tribunal to revoke the patient’s Forensic Order – where the patient has been on some form of Forensic Order since 2003 when found to be of unsound mind at the time she committed the offence of murder – whether the Forensic Order should be reinstated.

COUNSEL:

J Briggs for the Defendant
J Tate for the Director of Mental Health
B McMillan for the Attorney-General

SOLICITORS:

Legal Aid for the Defendant

Crown Law for the Director of Mental Health

Crown Law for the Attorney-General

NN LYONS J:A

1. This is an appeal by the Attorney-General of a decision of the Mental Health Review Tribunal (MHRT) of 2 September 2010 to revoke the Forensic Order made on 28 July 2003. A stay of the decision is also sought. On 9 November 2010 I delivered my decision in relation to this appeal and allowed the appeal  These are my reasons for doing so.

1. It is clear that pursuant to s 333 of the Mental Health Act 2000`(Qld) (MHA) an appeal to this Court is an appeal by way of rehearing and no error needs to be shown in relation to the decision of the MHRT. On the hearing of the appeal this Court can make any decision the MHRT could have made. The Court must take into account the evidence which was before the MHRT as well as any further evidence which is provided to the Court. The ultimate question which needs to be determined on the hearing of this appeal is whether the Court is satisfied that the Forensic Order should be revoked because the patient does not pose an unacceptable risk to the safety of herself or others.

The Mental Health Court Decision on 22 July 2003

1. The offence that was the basis of the reference to the Court was the murder of her one week old baby. The circumstances surrounding the offence were set out in the reasons of Wilson J[1] as follows;

   [1]Re KMV [2003]QMHC 005

“[4] A daughter, T, was born on 21 November 2002 in the Cairns Base Hospital. It had been a planned pregnancy. Although the labour was difficult, the baby was healthy. On 29 November 2002 the defendant killed the baby by squeezing her hard so that she would “go to heaven”. The defendant was subsequently charged with the murder of the baby.”

[5] The defendant had previously suffered from mental illness. As a teenager she had an eating disorder, probably anorexia, and some depression. In 1990 she had an episode of going “high” followed by depression with sleeplessness. She sought treatment in [European city]. After the birth of her third child in Australia she was depressed, and a presumptive diagnosis of post natal depression was made. Then in 1999 she was admitted to the Cairns Base Hospital Mental Health Unit as an involuntary patient. Her symptoms included psychomotor retardation, which alternated with periods of aggression requiring seclusion, disorganised behaviour, paucity of speech, and internal preoccupation; she was possibly responding to auditory hallucinations. Her treating psychiatrist Dr Janet Bayley diagnosed a schizophreniform psychosis or a brief psychotic episode. The defendant was discharged into the care of her family and followed up at [a district] Community Mental Health Service under Dr Una Stephenson, a consultant psychiatrist. There was another depressive episode without psychotic features in 2001. Although she was prescribed anti-depressant and anti-psychotic medication, the defendant chose not to take this during her pregnancy with T, for fear of harming the unborn child.

[6] Even when she is well, the defendant has only limited ability to communicate her feelings. She has virtually no ability to do so when she is unwell. This is more than a function of English being her second language.”

1. The psychiatric evidence before the court in 2003 was as follows;

“[10] The Court received reports and oral evidence from four consultant psychiatrists - Dr Keith Muir (who treated the defendant in the Cairns Base Hospital after the death of T), Dr Janet Bayley, Dr William Kingswell and Dr Peter Fama, as well as written reports from Dr Una Stephenson. All agreed that at the time of T’s death the defendant was suffering from a mental illness. Dr Bayley diagnosed the illness as bipolar affective disorder which was in a major depressive episode with psychotic features at the relevant time. Dr Fama ultimately agreed that she suffered from bipolar affective disorder. Dr Kingswell described it as a mental illness characterised by recurrent depressive episodes associated with psychotic symptoms. Ultimately Dr Muir expressed the opinion she was suffering from major depression with psychotic features. However the illness is best described, it was ultimately the opinion of the four psychiatrists who gave oral evidence that at the relevant time the defendant was suffering from major depression with mood congruent delusions which deprived her of the capacity to know that she ought not kill her daughter.”

1. The patient was found to be of unsound mind at the time of the commission of the offence. 

The Mental Health Review Tribunal Decision

1. Due to the nature of the index offence, the patient was made a special notification forensic patient. At the statutory review of the forensic order which was held at [North Queensland] on 4 March 2010, the treating team sought a revocation of the forensic order. The review was part heard on 4 March 2010 and adjourned to allow a further examination and report to be obtained. Dr Mark Schramm examined the patient for the purposes of an examination order in accordance with s 457 of the MHA. Dr Schramm gave evidence before the Mental Health Review Tribunal on 2 September 2010 as did Dr Van Meer, her treating psychiatrist.

1. In coming to its decision, the Tribunal reviewed the extensive material which had been provided to it including a history of the patient’s admission to the Forensic Mental Health Service. In particular, the Tribunal relied on the [a district] Community Forensic Mental Health Service psychiatrist report dated 26 February 2010, as well as Dr Schramm’s report of 23 June 2010, and a number of recommendations from the Limited Community Treatment Review Committee dated 15 February 2010.

1. In determining whether a forensic order should be revoked the Tribunal noted that it must not revoke the forensic order or approval into community treatment unless satisfied that the patient does not represent an unacceptable risk to her own safety or the safety of others, having regard to her mental illness. The Tribunal relied heavily on the report of Dr Schramm who noted that the patient’s only dangerous behaviour occurred under quite specific circumstances, that is, after the delivery of a child and that she has no plans to have any more children and has a tubal ligation. Significantly, the patient gave birth to her fifth child following the murder of her previous child without incident. Substance abuse has never been a problem and the patient has insight and has been compliant with her medication since being on the forensic order.

1. The Tribunal noted that Dr Schramm considered that the patient was very aware that her mental illness led to the death of her baby and is motivated to stay well, not only for herself but also for her family. Dr Schramm noted that the patient was aware of early signs of deterioration. Dr Ramsden, in her report of 26 February 2010 had recommended a withdrawal of the patient’s contact with Mental Health services.  In his June 2010 report, Dr Schramm also outlined a management plan for a gradual withdrawal of intense contact with the patient.

1. By the time of the second hearing in September there was some evidence that the patient had dealt with the decreased contact without incident over a three month period. There was ongoing case management in the form of fortnightly visits by the case manager and three monthly psychiatric appointments were in place and would continue without the forensic order being in place. This was consistent with the management plan Dr Schramm had outlined. Dr Schramm’s conclusions were consistent with that of the treating psychiatrist that the risk of future serious violence was low and that the forensic order should be revoked.  Both psychiatrists however indicated that there needed to be consistent support into the future.  I note that Dr Schramm stated;

“My one concern is that, by virtue of her personality and possibly some embarrassment/reticence regarding her history (understandable) it would seem, [KMV] may have some tendancy to minimise her distress at times......This, coupled with her presenting with more subtle signs may give those assessing her some false sense of security.”

1. Significantly Dr Schramm concluded that the patient’s treatment should be lifelong and that she needed “above-average case management and psychiatric care.” Dr Schramm also highlighted the importance of her husband being involved with the mental health service and that there needed to be clear guidelines and alerts put in place. He also indicated that there needed to be a low threshold to reinstitute a voluntary treatment order.

1. Ultimately the Tribunal concluded that the patient was someone who had come a long way since committing the offence in November 2002, that she has remained mentally stable and committed to her treatment for the intervening eight years and has a strong therapeutic relationship with her treating team. The Tribunal noted that the patient has close and loving family members who are aware of her illness and the need to monitor her mental state on an ongoing basis. The Tribunal noted that the patient has only required admission once since the index offence and that was following the birth of her fifth child in 2004. Her mental state has remained stable since the index offence, even with significant family stressors. The patient’s mental illness is not complicated by alcohol abuse or illicit drug abuse and she has had the opportunity over the years to receive information and education about her illness and the need for treatment. The Tribunal considered there were also a number of protective factors in place to ensure that she remains well. The Tribunal was therefore satisfied that the patient did not pose an unacceptable risk to the safety of others or to herself.

The Grounds of Appeal

1. In the reasons for the appeal the Attorney-General has indicated that the decision to revoke the forensic order was premature because of the nature of the index offence and because the patient requires intensive treatment and support over and above that required for an ordinary patient. The reasons for appeal also stated that the doctor’s report recommending revocation were conditional and guarded and that the recommendation to revoke was unsatisfactory given the patient has a chronic illness, which is prone to relapse.

1. The reasons also stated that Dr Ramsden indicated that the patient should be continued to be managed on an involuntary treatment order (ITO) and accordingly there was justification for the forensic order to continue. The reasons for the appeal also noted that Dr Schramm stated that there should be a low threshold for invoking an involuntary treatment order and that that was unsatisfactory given that the treatment criteria of an involuntary treatment order may not be met in spite of disengagement or relapse. The reasons for appeal also noted a number of significant stressors, including the fact that the patient’s husband works away from home for six weeks at a time; she has no real support in [North Queensland]; she has continuing difficulties with her son; and she needs above average case management and psychiatric care.

1. The appeal also noted that there was an absence of evidence about risk or risk management strategies in relation to contact with the patient’s family in [European Country] and that no risk assessment or management plan had been provided to the Tribunal for travel to [European country], permission for which had been previously withheld by the Director of Mental Health. The reasons noted that the patient has care of children and plans to travel to [European city] and that given the risk of relapse the revocation of the forensic order was unacceptable.

1. The reasons for the appeal stated that the patient poses an unacceptable risk to the community if not under a forensic order. It is clear in its reasons for decision the Tribunal considered the issue of whether there was an unacceptable risk in relation to the patient’s travelling to [European city]. In particular, the Attorney-General’s representative was present at the hearing and referred to an unsettled family situation in [European city]. The patient’s father was an alcoholic who abused his wife. It is clear however that both the patient’s parents have died of heart disease.

1. It is correct that the Attorney-General’s representative noted that no risk assessment had been done but the Tribunal noted that there was never any indication that there was a risk in relation to her travelling to [European city]. It is clear that the patient has not lived with her family since she married at the age of 18 and that any return to [European city] for a holiday would be unlikely to increase any risk of relapse due to family of origin problems. The Tribunal also noted that Dr Schramm had spoken to the patient about her desire to travel to [European city] and he had set out a management strategy which needed to be put in place prior to travel occurring which both the patient and the treating team were aware of.

1. It is clear that the Tribunal considered that given her current level of insight and commitment to staying well she would ensure treatment continued wherever she was. The Tribunal noted that the patient has a strong therapeutic relationship with her treating team and would seek their help and input to set up all that was needed  to allow such travel to run smoothly.

Additional Evidence from Dr Van Meer

1. Dr Van Meer gave evidence to the Court and confirmed the evidence he gave to the Tribunal.  He also indicated that he had no concerns about travel to  as he would contact the relevant mental health services there and have strategies put in place fro her to receive depot medication.  The patient was receiving depot medication because it was the most efficacious and not because of any compliance issues. 

1. It became clear however during the course of evidence that Dr Van Meer did not fully agree with all the information contained in the update report provided to the MHRT and had not prepared it.  It would also seem that Dr Van Meer favoured a diagnosis of schizoaffective disorder rather than a recurrence of a major depressive episode with depressive features.  Dr Van Meer also agreed that the patient was very reticent but that this had not resulted in any issues of non compliance. He understood that the patient wished to come off the Forensic Order because of the continuing oversight from mental health services which she found exasperating.  It would appear that the patient does not wish to explain the continuing presence of the Community mental health Service to her younger children.  Dr Van Meer also agreed that his previous report to the MHRT just six months earlier had recommended the continuation of the Forensic Order.  Dr Van Meer stated that the factors which had changed were the patient’s request to come off the Forensic Order and the passage of time.  He could not point to any change in her level of insight  or compliance in that time.  

1. Dr Van Meer also agreed that if the Forensic Order was revoked and the patient subsequently became non compliant with treatment that the possibility of obtaining an Involuntary Treatment Order was a fragile mechanism given the treatment criteria would need to be met before such an order could be invoked. 

1. Dr Van Meer stated that he agreed with Dr Schramm’s view that the patient needed more care than that provided to a voluntary patient.  Dr Van Meer agreed that the risks to her would be heightened if she did not sleep or continue to take her medication.  Her risk would also increase if she became stressed.  Her greatest risk however would appear to be non compliance with medication.

The Views of the Assisting Psychiatrists

1. Dr Varghese noted Dr Van Meer’s evidence that he would favour a diagnosis of a schizoaffective disorder rather than a major depressive episode with psychotic features.  Dr Varghese considered that in relation to the issue of diagnosis some of Dr Van Meer’s evidence was contradictory.  Dr Varghese advised however that irrespective of the actual diagnosis, the patient had a lifelong illness that requires lifelong treatment.  He considered that if there is a recurrence of psychotic depression then there has to be issues of risk because the person with psychotic depression doesn't commit acts against others out of need for violence, but rather because the depression causes them to see the world in a particular way.  Such a person has catastrophic views as to what is happening, catastrophic views as to what might be happening to their children and sometimes they believe that what they have done has resulted in something terrible going to happen to their children.  And it's in that kind of context that acts of violence occurs as against inherent violence. 

1. Dr Varghese did not agree with Dr Van Meer’s conceptualisation of risk in depression and considered that if there is schizophrenia the risk is much more substantial as you are more likely to have bizarre symptoms that give rise to actions that cause risk.  Dr Varghese also considered that if there is a recurrence of depression it greatly increases the suicide risk and he noted that the patient was treated with ECT in December 2004 at which time she was suicidal.

1. Dr Varghese considered that overall it was in the patient’s best interests that the Forensic Order be maintained.  He also accepted the submission that the decision to revoke the Forensic Order was premature and that there needed to be more diagnostic certainty and a clarification of the diagnosis. He considered a step down process while the patient was still on a forensic order was necessary. 

1. Dr McVie agreed that the diagnostic uncertainty does make accurate consideration of prognosis quite difficult.  Dr McVie also stated that the purpose of a Forensic Order for people with mental illness who commit serious violent offences such as murder, is not just to ensure assessment and acute treatment, but it's to ensure the continuing effect of ongoing mental health care. 

1. Dr McVie stated that the purpose is not to stop or decrease the level of input when the patient becomes well or gains insight and is compliant.  Dr McVie stated that whilst the risks might be low having regard to the nature of the index offence, even a very low risk needs continued and intensive management.

1. Dr McVie noted that the patient was doing very well at the moment however she stated that she had concerns that Dr Van Meer intends to decrease his frequency of review from six weeks to 12 weeks.  Her concerns related to the plan of decreasing frequency of review and decreasing frequency of case management involvement.  Dr McVie’s concern was that many public mental health community services do discharge stable, voluntary patients and transfer their treatment back to the general practitioner.  Dr McVie stated that while it's unlikely that this will happen in the short-term and the risk of transfer to a GP may be decreased while Dr Van Meer and the current case managers remain in place, these factors aren't always all that stable in public mental health services.  Dr McVie’s advice was that the patient's current risk is only low because of the quality and intensive nature of her current management and follow-up.

1. Dr McVie also advised that in terms of risk assessment and policies she had concerns that the HCR-20 risk assessment was not available to the Tribunal reportedly due to Freedom of Information provisions.  Her strong advice was that it is essential that the Tribunal has access to all risk assessment documents when it's reviewing any forensic patient to enable it to make an accurate decision.  Dr McVie hoped that the Director of Mental Health would be able to make policy or guidelines to ensure the Tribunal was able to access such documents.  If confidential information is included in those documents a confidentiality order should be sought by the author of a document or the service.

1. Dr McVie also stated that there was a Director of Mental Health policy for interstate and overseas travel for persons on Forensic Orders which sets out criteria and guidelines and that there are provisions for persons on Forensic Orders to be able to travel overseas.  Dr McVie considered that if the patient is well and the right provisions were put in place by the treating team she could see no reason why the patient would not be able to travel to [European city].

1. Dr McVie also referred to s 309A of the Act which mandates that the Director of Mental Health make a policy on the management of forensic patients, particularly special notification forensic patients (SNFP).  Dr McVie stated that while some SNFPs would benefit from less frequency or less intensive case management, her advice would be that if such a thing were to occur then this should be done with a clear clinical report supported by a forensic service report and approved by the Director of Mental Health rather than by a clinical director of the service.

1. Overall Dr McVie stated that she would take advice on this case from Dr Schramm's report and his management advice.  Dr Schramm said that treatment should be lifelong, the patient needs above average case management.  Dr McVie stated that anybody who follows the patient up needs to know her and her case very well.  She considered that she needs to be followed up indefinitely by one of the more senior case managers and the most senior psychiatrist in the service.  Dr McVie stated that there needs to be clear guidelines and alerts placed within all files of the services so that if she comes in contact with anyone in the hospital any concern is passed onto a psychiatrist and case manager.

1. Dr McVie advised that the patient remains on a Forensic Order.  So my advice is that the Forensic Order should be reinstated.

Conclusion

1. I consider that the grounds of appeal have been made out.  I consider that the revocation of the Forensic Order was premature given the current level of risk.

1. In particular I am conscious of Dr Schramm’s clear view that the patient’s treatment needed to be ‘lifelong’ and that she needed “above-average case management and psychiatric care”. He also highlighted the importance of the patient’s husband.  Dr Schramm also stated that there needed to be clear guidelines and alerts put in place and this was clearly endorsed by Dr McVie. Dr Schramm also indicated that there needed to be a low threshold to reinstitute a voluntary treatment order.

1. Dr Ramsden in her report of 26 February 2010 also stated that;                    

“She should remain on the Involuntary Treatment Order, with further spacing out of supportive services on a stepwise basis.  This support should be easy to ramp up if stressful conditions re-emerge, which is likely to happen from time to time.”

1. In my view Dr Schramm, Dr Ramsden and Dr Van Meer considered that the patient required more support than that provided to a voluntary patient.  It was also implicit in the reports that there was a view that an involuntary treatment order was some form of step down from a Forensic Order.  It is clear however that that is not the purpose of an involuntary treatment order.  In order for an ITO to issue the treatment criteria must be satisfied.  In particular it is clear that should the patient become non compliant with her medication regime or not attend an appointment those actions would not necessarily fulfil the criteria for an involuntary treatment order.  Those actions however significantly increase the level of risk.

1. The risk management strategies required for the patient, that is the clear guidelines and alerts referred to, can only currently exist and be managed within the context of an ongoing Forensic Order.

1. Furthermore Dr Van Meer has been the patient's treating psychiatrist for more than three years now and the MHRT has reviewed the Forensic Order on a six monthly basis over the course of that three years.  In his evidence to the Court Dr Van Meer stated that February 2010 was the first occasion that he had recommended that the Forensic Order be revoked.  Up until that point Dr Van Meer had indicated that his clinical recommendation was that the Forensic Order should be confirmed. Which meant that up until then he considered that if the Forensic Order were revoked she would pose an unacceptable risk to either herself or the community, having regard to all of the relevant risk factors associated with her mental illness.  In his evidence to the Court however Dr Van Meer stated that there has been no change either in the patient’s mental state, her insight, her medication regime or her support needs between July 2009 and February 2010.

1. Whilst it was appropriate there should be some step down in the level of support required pursuant to the Forensic Order and that such a step down had worked successfully for some months it is clear that the patient still needs a high level of support.  She continues to need, on the basis of the Violence Risk Assessment Report dated 11 November 2009, fortnightly monitoring by a case manager, fortnightly depot medication, medication, fortnightly assessment by a District forensic liaison officer, six weekly review by a psychiatrist until a further step down is deemed appropriate.  That report stated;

“There has been some discussion regarding [KMV] coming off the forensic order.  [KMV] is currently progressing well and her risk has been identified as low however rather than progressing directly from the high level of support provided to a SNFP forensic client to only voluntary engagement, it would be recommended that a plan is developed that is designed to provide step down in intensity of support.  The treating team could negotiate with the Clinical Director regarding gradual reduction in frequency of contact including reduced visits from the case manager and reduced fortnightly assessments.A gradual reduction for example might start with fortnightly visits from the CM and six weekly psychiatrist assessment and then progress to 2 monthly reviews and then 3 monthly reviews as deemed appropriate.    The gradual reduction in support would be beneficial for the client as her independent management and mental health could be monitored while she remained on the order.  A gradual reduction in support would also provide evidence to the next MHRT regarding her suitability for revocation of the forensic order.

Finally it would be recommended that [the patient’s husband] be involved in planning regarding reducing the level of support or [KMV] coming off the forensic order.  Engaging [the patient’s husband] in these discussions may help to ensure that he understands the importance of her continued treatment and engagement with the mental health service regardless of the forensic order.” (my emphasis)

1. I note that the MHRT did not have that Report before them at the time of the hearing on 2 September 2010.  I also note Dr McVie’s advice to the Director of Mental Health in this regard. I can see no reason why such a report is not provided to the MHRT.  The MHRT can make the Report the subject of a confidentiality order if one is required.  In this case such an order would not in fact have been required in my view.  I am concerned that such an important report can be prepared for the purpose of assessing risk but be withheld from the MHRT and indeed not be provided to this Court simply because the author claims it is ‘confidential’.  If the author considers that there is confidential information contained in the report then such a claim can be considered at the time a request for a confidentiality order is made. 

1. It would seem clear to me that whilst there was some evidence that the patient was coping well with the first step down in the level of support there were still a number of step downs required before there could be sufficient evidence of the suitability of the total revocation of the Forensic Order.  Furthermore the patient’s husband still needed to be engaged in the planning with respect to the proposed reduced level of support and his important role in the continuation and monitoring of his wife’s treatment.

1. In my view the revocation of the Forensic Order was premature.

1. The grounds of appeal have been made out.  The appeal is successful.  The decision of the MHRT dated 2 September 2010 is set aside.  The Forensic Order of 3 September 2009 is reinstated.