Re La

[2011] QMHC 11

MENTAL HEALTH COURT

CITATION:	Re LA  [2011] QMHC 11
PARTIES:	APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING NO:	0133/11
DELIVERED ON:	26 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2011
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr F Varghese
FINDINGS AND ORDERS:	1.     The forensic order and limited community treatment in the decision of the Mental Health Review Tribunal dated 24 March 2011 is confirmed The appeal is dismissed;
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where the Attorney-General appeals a decision of the Mental Health Review Tribunal made on 24 March 2011 confirming a forensic order and limited community treatment in respect of the respondent – where the Attorney-General appeals on the basis that there is evidence the respondent continues to breach conditions of his limited community treatment by not abstaining from drugs and alcohol and therefore should be hospitalised– whether the appeal should be allowed
COUNSEL:	B McMillan for the Attorney General J Tate for the Director of Mental Health J Briggs for the respondent
SOLICITORS:	Crown law for the Attorney General Crown Law for the Director of Mental Health Legal Aid Queensland for the respondent

ANN LYONS J:

1. This is an appeal by the Attorney General filed on 23 May 2011 against a decision of the Mental Health Review Tribunal (MHRT) made on 24 March 2011 in respect of the respondent [LA]. On that occasion the MHRT confirmed the forensic order and allowed the respondent limited community treatment which allows him to continue to reside at his unit at Bowen Hills.  He receives regular depot injections of his medication and is subject to regular urine drug screens. He is not permitted, as a condition of that order, that he have any contact with his brother.

1. The Notice of Appeal sets out the grounds of appeal as follows:

“The patient continues to breach the conditions of the limited community treatment by regularly smoking cannabis.

The Tribunal should have imposed conditions which required the patient to be hospitalised and his LCT cancelled if he breached the conditions of his LCT relating to abstinence from drugs and compliance with medication.”

1. Since the MHRT hearing the respondent has made several attempts to contact his brother by phone and he also decreased his dose of oral Olanzapine without notifying the treating team. Essentially Counsel for the Attorney General argues that the respondent continues to breach the conditions of LCT by regularly smoking cannabis and that the MHRT should have imposed conditions which required he be hospitalised and his LCT cancelled if he took drugs or was non compliant with medication. Given the recent breaches of his LCT conditions Counsel for the Attorney General also argues that the current risk is such that the respondent should be admitted to a Medium Secure Unit to ensure his compliance and to manage the risk to others.

Background

1. The respondent is currently 45 years of age and was placed on a forensic order by this Court on 24 September 2010. He had previously been the subject of a forensic order in 1995 to 1996 following a charge of arson when he broke into his brother’s house and set it alight. He was on an Involuntary Treatment Order (ITO) between 2001 and 2003 and between 2006 and 2010. The respondent was then charged with unlawfully wounding when he attacked his brother with a bread and butter knife outside his place of work in October 2009.

1. The respondent was first diagnosed with schizophrenia in 1981 and has a current diagnosis of paranoid schizophrenia. He is a very intelligent and well educated man. He completed a law degree and worked in the Tax Office until the age of 22 when he had to cease work due to his illness. He has a history of non compliance with treatment and illicit substance abuse. He has also had periods of homelessness. The respondent has used marijuana most of his adult life and in the last decade has used opiates including heroin, codeine, morphine and currently methadone. He previously used amphetamines but ceased 2 years ago.

1. The respondent has a long history of conflict and estrangement with his family and one of his brothers in particular. he wounded his brother during a period when he was experiencing auditory hallucinations. Those hallucinations had increased in frequency since June 2009 when his father died. His anger increased when he was aware that he had been excluded from his father’s will. His use of marijuana had increased significantly between the death of his father and the alleged offence in October 2009.

The treating psychiatrist’s report

1. In terms of his current treatment Dr Levien stated that the respondent is on depot Flupenthixol and oral Olanzapine. He also takes Zyprexa at night. Dr Levien has recommended a trial of Clozapine could be beneficial but recognises that there are concerns that this may have side effects for the respondent given that he has a family medical history of leukaemia.

1. The report of Dr Levien dated 14 June 2011 indicated that the respondent was compliant with his medication and was doing reasonably well. He was attending his appointments but needed reminding. He has settled routines. Whilst the respondent was using morphine prior to the forensic order the treating team indicate that since the forensic order there have been no positive urine drug screens for amphetamines or morphine. It is clear that the respondent continues to use marijuana and the treating team are concerned in relation to its role and the respondent’s ongoing delusional ideation.

1. At the time of the MHRT hearing the treating team did not consider there was any need to vary the current limited community treatment conditions but considered that an order prohibiting contact between the respondent and his brother should be added to the existing conditions although a domestic violence order was in place. Such a condition was appropriately added to the conditions by the MHRT.

1. Dr Levien however confirmed that since the MHRT hearing the respondent had deteriorated in that he had attempted to contact his brother by phone and he had also reduced his oral medication due to sedation. On 11 July 2011 the respondent made a threatening phone call to his brother in breach of a Domestic Violence Order which had followed a series of late night phone calls which had gone unanswered. The respondent was admitted to hospital for two weeks for assessment and review.

1. There is a clear history of the respondent leaving thought disordered phone calls to his brother when unwell in that he believes that his brother has special powers over him and that he has cancer as a result of those powers. The respondent  has threatened to kill his brother in the past.

1. In response to those issues it is clear that the respondent was returned to hospital for assessment and review. As a result of that review his treatment has been increased. The monitoring of his compliance with medication has also been increased as has the monitoring of his behaviour. In particular the respondent now has weekly rather than fortnightly depot injections and he is being tested regularly to ensure he is taking his dosage of Olanzapine. He is now visited more regularly by his case manager who sees him twice a week and he is seen by his psychiatrist every 2 to 3 weeks.

1. Dr Levien stated that he had also commissioned a Risk Assessment Report to address the issue of risk which had recently been completed. That report by Dr Donald Grant dated 10 August 2011 indicated that incidents of violence by the respondent had occurred as a direct result of persecutory delusions and other psychiatric symptomatology of his Schizophrenic illness.  He concluded that “The respondent has at least a moderate risk of future violence. This risk will become more imminent should there be significant changes to the respondent’s clinical presentation, his current circumstances or should he be exposed to significant stressors or de stabilisers.”

1. In terms of whether the current LCT conditions are still appropriate or whether the respondent required admission to a Medium Secure Unit Dr Levien stated that he considered that the current conditions are still appropriate but noted that as the respondent has a MHRT Review hearing scheduled for late September his aim was to closely monitor the respondent prior to that hearing and to reconsider the issue fully at that hearing. In terms of whether the current forensic order conditions appropriately managed the risk Dr Levien considered that on balance they did. He did not consider that an admission to a Medium Secure Unit was required at this stage given that there had been a tightening of the monitoring and an increase in the respondent’s treatment..

This appeal

1. The argument of Counsel for the Attorney General is essentially that given the breach of the Domestic Violence Order in July by calling his brother the respondent should be admitted to a Medium Secure Unit to allow him to withdraw from cannabis.  Counsel also argues that there should be an automatic revocation of the LCT whenever the respondent smokes cannabis or takes drugs irrespective of the actual impact it has on his mental condition. It would appear that Counsel is arguing that the current discretion which resides in the treating psychiatrist to return him to hospital when his mental condition requires it, be altered to require a mandatory return to hospital should he take drugs.  In effect he would be returned to hospital as a punishment for taking drugs rather than as a consequence of a deterioration in his mental state.

Does the respondent present an unacceptable risk to himself or the community?

1. This Court made a forensic order on 24 September 2010 and approved limited community treatment subject to 5 conditions. Those conditions required that he reside at his residence at Bowen Hills or at a place approved by his psychiatrist and that he attend all appointments with the authorised psychiatrist.  He was also required to comply with the requirements of the authorised psychiatrist in relation to the taking of medication and other treatment. Condition 4 required that he refrain from alcohol and illicit drugs and that he co-operate fully in random medical tests for the detection of those substances as required by the authorised psychiatrist. He was not permitted to drive a car unless authorised to do so by the authorised psychiatrist.

1. Section 200 of the Mental Health Act 2000 (Qld) (the Act) provides that the MHRT must review a forensic patient’s mental condition within 6 months of the forensic order being made and thereafter in 6 monthly intervals.

1. The powers of the Tribunal are set out in s 203(1) of the Act which provides:

“203 Decisions on review

(1)         On the review, the tribunal must decide to confirm or revoke

the forensic order for the patient.”

1. Section 203 (2) then provides as follows:

(2)         If the tribunal confirms the forensic order, the tribunal may

decide to make 1 or more of the following orders—

(a) an order that the patient have limited community treatment subject to the reasonable conditions the tribunal considers appropriate;

(b)an order approving limited community treatment for the patient subject to the reasonable conditions the tribunal considers appropriate;

(c)an order revoking an order or approval for limited community treatment for the patient; or

(d)an order that the patient be transferred from one authorised mental health service to another authorised mental health service; or

(e)an order that the patient be transferred from an authorised mental health service to the forensic disability service.”

1. Importantly s 204 (1) provides:

“204 Restrictions on review decisions

(1)The tribunal must not do either of the following unless it is satisfied 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—

(a)       revoke the forensic order for the patient;

(b) order or approve limited community treatment for the patient.”

1. The degree of satisfaction required by the tribunal is the civil standard, on the balance of probability. It is clear that on the evidence before it the MHRT continued the forensic order in essentially the same terms as the initial order but added a non contact order pursuant to s 203(3).

1. The Attorney-General’s appeal is essentially that the current conditions should be amended or the limited community treatment conditions should be revoked because the respondent presently presents an unacceptable risk to the safety of others.

1. Section 325 (1) of the Act provides that in deciding an appeal this Court “may confirm or set aside the decision appealed against”. Section 325 (2) then provides that if the Court sets aside the decision appealed against the Court “may make a decision the tribunal could have made on the review or application.”

1. Section 333 (2) of the Act specifically provides that “The appeal is by way of rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence the court allows.” As an appeal to this Court from a decision of the MHRT is an appeal by way of rehearing the court is to consider not only the evidence that was before the tribunal but the evidence as it stands at the time of the appeal.

1. Since the MHRT hearing there has been a further incident of aggression towards Mr the respondent’s brother by way of a phone call. The Court has also considered further medical evidence as Dr Levien has provided a further report and given oral evidence. The Risk Assessment Report of Dr Grant has also been considered.

1. It is clear that a forensic order is still required as the respondent has a long history of treatment resistant paranoid schizophrenia. It is clear that this appeal is not about the continuation of the forensic order but rather the conditions of that Order and in particular the LCT conditions which allow the respondent to continue to reside in the community.

1. The Court needs to be satisfied that the respondent does not represent an unacceptable risk to the safety of himself and the community. Should the current limited community treatment conditions continue? Are the current conditions of the forensic order appropriate? The escalation of the respondent’s behaviour in July 2011 is of concern.  I note the respondent’s delusional beliefs and in particular it is of concern that the respondent’s attack on his brother was against a background about Satanism and mental telepathy involving him. 

1. Whilst the respondent is no longer using morphine and has not had any positive tests for morphine in the last 12 months and he is no longer using amphetamines, it is clear that he is still using large quantities of cannabis. The escalation in his behaviour it occurred against a background of the respondent decreasing his dosage of Olanzapine because of sedation.

1. In many ways Dr Levien stated that the respondent had been doing well.  He was no longer homeless. He was well settled in his studio flat which he was enjoying and had been interacting with his neighbours. As Dr Grant notes he has a much more stable accommodation and lifestyle now. He is also receiving assertive case management and he has been very cooperative. He had voluntarily increased his Zyprexa on occasions and had also sought out his case managers. He is well engaged with his treating team and progress is being made. He is being assertively case managed and the treating team continues to monitor his level of usage of substances and ensure he takes his prescribed medication. He has ceased the use of all substances other than cannabis and he is taking his medication. He is attending at Biala. He is not abusing alcohol.

1. Whilst Dr Grant referred to the option of a longer term admission to the Medium Secure Unit to achieve a withdrawal of cannabis he conceded that the reality is that even in a secure unit he might be able to access cannabis.

1. The assisting psychiatrists both advise that the forensic order, with the current limited community treatment conditions, should be continued unchanged. Dr Varghese advised that the current conditions allow the treating team great flexibility and maximises therapeutic decision making which is sensitive to the issues of risk, which the treating team are well aware of. Dr Varghese’s advice was that micro-managing the LCT conditions in the way submitted for by Counsel for the Attorney General “is not to anyone’s benefit”.  Dr Varghese stated that the respondent can be readily readmitted to hospital by the authorised psychiatrist when the respondent’s mental condition requires it but that decision should be made on the “totality of the clinical situation not just the urine test.”

1. Dr Varghese noted however that the respondent was a troubling case, he stated;

“The patient has chronic schizophrenia, moreover it's at the severe end of the spectrum, in that there are persisting psychotic symptoms in the form of delusions, and also hallucinations, according to - if one reads the report of Dr Grant.  The nature of his delusions and his hallucinations, and taking into account his behaviour of setting fire to his brother's house and then several years later attacking him with a - with a knife, does raise serious questions of - of dangerousness and that - that - issues of risk to his - to his brother is clearly serious.  My - it seems to me, as I questioned Dr Levien, this man is crying out for a trial of Clozapine, and that's only going to be achievable with a prolonged stay in hospital so he can be monitored for - firstly he can be educated about the illness - about his illness and about the drug, appropriate investigations done, and if he were to agree to the treatment he would need to be monitored, in any case, with blood tests for - as well as for any potential cardiac complications.

In this sort of case there is actually a good case for - in my view, for treatment with Clozapine, even if the patient were not to consent.  I would give serious consideration to that, mindful of the fact that there - it does raise ethical and legal issues.  If - when people respond to Clozapine the response is sometimes almost miraculous and can transform the patient's life and with - with that there's ongoing cooperation with the treatment as an outpatient.  But I don't think it is up to the - this Court to order - order admissions to hospital or order treatment and I would leave that to the judgment of the treating team.  Whether his prolonged admission is in a medium secure or in the Royal Brisbane is a - really a practical matter rather than a - a - I think a legal matter.”  

1. Dr Davison agreed with that approach and stated that in reality the LCT conditions were the “maximum outer boundary” and that the authorised psychiatrist and the treating team need to adjust those boundaries in response to the situation as it presents itself from day to day.  That is clearly occurring given the adjustments which have been made by Dr Levien is response to the respondent’s deterioration in July. 

1. Dr Davison noted the following;

“I see the - the day-to-day or week-by-week adjustment of the LCT that's provided as a treating team matter.  I mean, to use a - a medical analogy, it's somewhat like adjusting the dose of Ventolin in response to the presence of asthma symptoms.  It goes up and down.  It just depends on what it's like on the day, or on the particular week.  And Dr Levien pointed out that they're in constant contact, at least twice a week, if not more, and, no doubt, they're conducting a team meeting once a week where the matters are fully discussed.

Notwithstanding Dr Levien's remarks about the likelihood of Clozapine compliance eventually taking place in a medium secure unit, as a general observation I'd just like to put on the record that I know of more than a handful of cases of people who have sat in medium secure units for years are repeatedly encouraged to take Clozapine and who decline it for years.

On the question of forcing someone to take Clozapine, there has been in the past, I know, at the high secure service in Brisbane attempts to use injectable Clozapine, but I'm advised by a pharmacist that the - the buy availability (sic) of Clozapine for injections is very uncertain and one cannot be sure that one is titrating the dose successfully upwards in a graduated one as one would hope to do with Clozapine, and basically it's - it's not in current practice to - to - and there's no-one really supplying it as far as I'm aware.

So, I'm - I actually think it's unlikely that if - that an admission to a medium secure unit would, in fact, result in eventual compliance with Clozapine and I think it's just going to be the ongoing therapeutic relationship that the patient has with his treating team.”

1. In my view the forensic order should continue in its current form. The treating team are well aware of the risk and Dr Grant’s Report clearly sets out that there should be a low threshold for the respondent’s return to hospital particularly if his clinical presentation changed or he was exposed to stressors or he became destabilised. That is clearly the approach that the treating team is taking. It would seem that in the circumstances the treating psychiatrist is appropriately managing the risk on the current LCT conditions of the forensic order. Given the context of his last offending it is clear that the treating team are vigilant in this regard. It is clear that the respondent was returned to hospital after the phone calls in July.

1. Accordingly, I consider that the forensic order should be continued and the limited community treatment should continue as approved by the MHRT on 24 March 2011.

1. Accordingly the decision of the MHRT of 24 March 2011 is confirmed.

1. The appeal is dismissed.