Re KRS

[2012] QMHC 3

MENTAL HEALTH COURT

CITATION:	Re KRS [2012] QMHC 3
PARTIES:	APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING NO:	0237/11
DELIVERED ON:	31 January 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2012
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr F T Varghese
FINDINGS AND ORDERS:	Adjourned to a date to be fixed
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health J Thomas for the Attorney-General
SOLICITORS:	Legal Aid for the defendant Crown Law for the Director of Mental Health Crown Law for the Attorney-General

ANN LYONS J:

Background to the appeal

1. This is an appeal against a decision of the Mental Health Review Tribunal (MHRT) dated 14 June 2011. On that date the MHRT confirmed the Forensic Order made by this Court on 17 March 2011. The Tribunal also approved limited community treatment (LCT) which allowed KRS to reside at a place approved by the treating psychiatrist. The LCT conditions provided that “This placement is to progress in a staged graduated way in accordance with the Transition Plan submitted at the hearing on 14 June 2011.”

1. KRS was placed on the forensic order after he was found to be of unsound mind by this Court in relation to two indictable offences both of which occurred in the context of a disturbance at a unit complex at Miami where the defendant and the complainants both resided. Those charges are unlawful stalking and unlawful stalking using or threatening violence. The reasons for the finding of unsoundness record that KRS made sexual references and advances toward the female complainant late at night and then later, when the male complainant became involved, he threatened to throw him off the balcony and subsequently threatened to stab him. The Court was satisfied however that KRS had a diagnosis of paranoid schizophrenia since 1989 and had been on Clozapine since 1994. The Court concluded, on the basis of the reports of the reporting psychiatrists and the advice of the assisting psychiatrists, that KRS was, at the time of the offences, acutely psychotic and paranoid and was of unsound mind at the time of the commission of the alleged offences.

1. The reason noted however that those charges were serious and that a forensic order was required given the seriousness of the offences and the additional safeguards that a forensic order contained, even though KRS was on an involuntary treatment order.  Those reasons also noted that his progress had been slow and that he had limited insight into his illness. The forensic order also contained a condition that KRS “not initiate contact with either of complainants”.

1. On 12 September 2011 the Attorney-General lodged a Notice of Appeal against that decision.  The Notice of Appeal stated that there was “insufficient evidence put before the Tribunal for it to be satisfied that the patient’s risks are being adequately managed by the treating team to support the extension of limited community treatment to permit the patient to return to reside at the unit complex where the index offences occurred.” 

1. The Appeal was listed for hearing on 1 February 2011 however a further review by the MHRT was scheduled for mid January 2012. That hearing was adjourned pending the hearing of the appeal. 

1. On 31 January 2012 the matter was listed for mention in this court given the provision of new information. It was argued that this new information needed to be put to the treating team and fully explored in the setting of a MHRT hearing rather than in this court in the context of an appeal.

1. Counsel for KRS also brought an application that the appeal should be dismissed as an abuse of process. Counsel argues that s 9 of the Mental Health Act 2000 (MHA) is fundamental to the administration of the MHA. That section provides:

9 Principles for exercising powers and performing functions

A power or function under this Act relating to a person who has a mental illness or intellectual disability must be exercised or performed so that-

(a) the person's liberty and rights are adversely affected only if there is no less restrictive way to protect the person's health and safety or to protect others; and

(b) any adverse effect on the person's liberty and rights is the minimum necessary in the circumstances.

1. Counsel for KRS argues that s 200 of the Act mandates that the MHRT review a forensic patient's mental condition every six months. In the present case the statutory review period elapsed on 15 December, 2011. By continuing to prosecute the appeal, Counsel submits that the Attorney-General is exercising its power to appeal by displacing the patient's right to review. Accordingly by prosecuting this appeal the principle in s 9 of the Act is subverted and, unless there are exceptional circumstances, prosecuting the appeal is an abuse of the Act's process. Counsel argues that there are no exceptional circumstances allowing the court to entertain this appeal.

1. Whilst I note Counsel’s argument in this regard and the importance of the fundamental principles underpinning the Act I am not satisfied that in the particular circumstances of this case that there has been an abuse of process.

1. The real issue is how should the matter proceed? It would seem clear to me that, given the new information which Counsel for KRS only received at 9.35 on 31 January 2012, we are not in a position to proceed with the appeal.  In particular there are real issues in relation to ensuring that the treating team receives the information and are able to respond to it.

1. Given the nature of the new information I sought the advice of the assisting psychiatrists as to the most appropriate way that this new information could be dealt with.

Dr Mc Vie’s advice

1. Dr McVie advised that it was important that the new information should be given to the treating team as soon as possible so that they are able to evaluate it and utilise it to review their management plans. 

1. Dr McVie also indicated that she was concerned that the treating psychiatrists would bring up the issue of therapeutic relationship. She indicated that the best way to manage a patient with forensic issues is to be open and honest, and to be able to discuss with them the nature of their offending, the interplay between illness and their offending, and through this to assess their insight and understanding of why they are on a forensic order. Dr McVie stated that if that has not been done then it is of concern that KRS has been discharged back to the unit where he was living.

1. Dr McVie advised that having an open honest relationship is the best way to have a proper therapeutic relationship. Dr McVie also noted her concerns about colluding with the views of the patient and his mother given that there is information they consider that the charges were wrongly brought.

1. Dr McVie also stated that a decent risk assessment had not been done other than the report to the Tribunal completed in May this year, which is done by Greg Dumsey who was the District Forensic Liaison Officer. In that risk assessment he talks about the nature of the offence meeting the legal definition of stalking, however it does not meet the clinical definition for stalking, and says that the patient does not hold any ongoing need to engage with the victim, nor does he seek revenge even though he feels the charges are not true. Dr McVie expressed the view that such a view “is in complete contradiction to the information in the original QP9s” as well as other current information.

1. Dr McVie’s advice was that the treating team need to get an independent risk assessment done through the community forensic outreach service.

1. Dr McVie also indicated that there was nothing to prevent anyone who had any concerns about the viability of the current LCT to bring that information to the attention of the treating team. Dr McVie noted that there are multiple instances when third parties have given information to a treating psychiatrist. In her view the new information should be conveyed to the treating psychiatrist as soon as possible.

The advice of Dr Varghese

1. Dr Varghese advised that, from a clinical point of view, the treating team has to be aware of the new information so that the issues can be explored with the patient in a therapeutic setting.  Dr Varghese stated that a proper risk assessment could not be done unless that information is made available to them.

1. In terms of whether a psychiatrist should be excused from giving evidence in the presence of the patient, Dr Varghese stated that he agreed absolutely with what Dr McVie has stated. Dr Varghese continued:

“If you have a person who is paranoid you don't make him less paranoid by having conversations about him of a legal nature behind his back; that'll only make him more paranoid.  The best way to establish a good doctor-patient relationship is for the doctor to be absolutely honest and thorough and say in the presence of the patient what his concern is about so the patient can take that in.  That's part of developing insight.  If legal proceedings that affect the patient are held in secret, that can actually have the effect of destroying the doctor-patient relationship.”

Conclusion

1. Given the new information and the importance of the treating team accessing that information and discussing it with the patient in a therapeutic setting, it is clear that the appeal tomorrow cannot proceed.

1. In my view the most appropriate course is for this appeal to be adjourned to a date to be fixed.

1. Furthermore the new information should be provided to the treating team and a further report should be completed in response to that information.

1. A new independent risk assessment should be obtained from the community forensic outreach service.

1. I also consider that the MHRT should then proceed to hear the review of the forensic order which was adjourned in January, after the update report and the independent risk assessment have been obtained.

1. The decision of the MHRT may make the current appeal otiose but the appeal should in my view remain on foot until that issue becomes clear.  If there is a new appeal from the next MHRT hearing such appeal should be listed as a matter of priority.

1. I will also order that a copy of these reasons together with a transcript of the proceedings should be made available to the treating team and the parties.