Re Love

[2010] QMHC 39

MENTAL HEALTH COURT

CITATION:

Re Love [2010] QMHC 39

PARTIES:

REFERENCE BY THE DIRECTOR OF LEGAL AID QUEENSLAND IN RESPECT OF MARK RAYMOND LOVE

PROCEEDING:

No 074 of 2010

DELIVERED ON:

29 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2010

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDER:

1. That at the time of the alleged offences the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

Royal Brisbane and Women's Hospital Authorised Mental Health Service;That the defendant be detained as a forensic patient at the 2.   

Approval of limited community treatment commence immediately at the discretion of the treating psychiatrist on the conditions contained in the submission from the Director of Mental Health.3.   

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF
MENTAL ILLNESS OR INCAPACITY – where defendant

charged with driving without due care and attention, two counts of wilful damage, and common assault – where defendant threatened and abused a driver in another vehicle – where defendant has history of mental illness – where expert psychiatric evidence differed as to whether defendant was deprived of the capacity to know that he ought not do the acts in question – whether defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld)

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

C Morgan for the Defendant
J Tate for the Director of Mental Health

S Bain for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

PHILIPPIDES J:

1. Mark Raymond Love is charged with driving without due care and attention, two counts of wilful damage and one count of common assault, all on 6 June 2009.  The events in question concern the defendant's conduct in confronting a driver who was proceeding in front of him.  He tail-gated the victim, he tried to force the victim's car off the road and he hit the victim's car with his own car, which resulted in the victim pulling over to the side of the road to assess the damage to his car.  The defendant then pulled his car over and threatened and abused the victim.  He grabbed a pen and paper from the victim, who was attempting to record the defendant's details and shouted to the victim, threatening that:

“If you report this matter or tell the police I will fucking kill you.  I'm going to get you.”

1. He also punched the victim on the right shoulder and continued in aggressive conduct, including pursuing the victim when he tried to retreat into his car.  He slammed the door of the victim's car against the victim's leg and also caused a car window to shatter.  He reiterated threats before leaving.

1. It appears that soon after the defendant attended a service station.  He did not obtain any fuel from the service station, however, he went to the store and threatened counter staff that he was going to kill them and then he left the store.  He subsequently presented to the Indooroopilly Police Station in response to a call and told the police that earlier in the day he had had an altercation with a family member and had become angry, that he came across the victim and his car, that he believed that the victim was deliberately blocking his way and that he wanted to meet the victim, which seems to be an explanation as to his causing his car to impact with the victim's car.

1. Dr Kirkup, who is the defendant's current treating psychiatrist, has provided a report.  It is apparent that the defendant has a 15 year history of serious mental illness, with three admissions.  Importantly, Dr Kirkup stated in his report that the defendant had chronic symptoms in the form of delusions of infidelity regarding his wife.

1. I note that the two reporters who also gave evidence, Dr White and Dr Khoo, both gave a diagnosis of bipolar effective disorder.  However, in the light of the evidence of the chronic symptoms of a delusional nature, both were inclined to the view that schizoaffective disorder was a more appropriate diagnosis.

1. Dr White in his evidence opined that the defendant was deprived of the capacity to know that he ought not do the acts in question.  He considered that the other capacities were impaired but not deprived, although he had initially considered that the capacity to understand the nature of the acts in question may also have been deprived at the time.  He altered his opinion in that regard.

1. In offering the opinion that there was a deprivation of the capacity to know, Dr White pointed to the admission on the day in question.  In this regard I note that, subsequent to the defendant presenting at the police station, his condition was considered sufficiently grave that he was taken to hospital and admitted on an ITO.  The admission was a reasonably lengthy one, lasting about a month.

1. Dr White pointed to the fact that the behaviour was out of character and that similar aggressive behaviour had only occurred when the defendant was previously very unwell.  In his opinion, the defendant was likewise very unwell on the day in question and unable to reason with a moderate degree of sense and composure as to the wrongness of his acts.

1. I note that Dr Khoo altered her opinion in relation to diagnosis in the light of Dr Kirkup's report.  However, while she also considered that the capacities of control and of understanding the nature of the acts in question were impaired, in her view there was not a deprivation, but only an impairment, of the capacity to know.  Dr Khoo's opinion on that capacity was influenced by the nature of the threats that the defendant made to the victim that he not go to the police.

1. I note that Dr Khoo made two important concessions.  Firstly, she conceded that the defendant would not have acted in the manner he acted on the day in question if he had not been manic, accepting that the behaviour was reflective of manic behaviour rather than hypomania.  Secondly, she also accepted in oral evidence that the threats made to the victim may well have been reflective, not so much of an understanding of the wrongness of his conduct, but perhaps reflective of a sense of entitlement and symptomatic of his illness.

1. In my view, and having heard the advice of the assisting psychiatrists who both favour the view of Dr White, I am satisfied that the severity of the defendant's illness on the day in question was such as to result in a deprivation and not merely an impairment of the capacity to know.  In favouring Dr White's opinion, I was influenced by the fact that the defendant's behaviour was considered to be so serious on the day in question that the criteria for an ITO were found to be met.  Furthermore, the behaviour was uncharacteristic and occurred in circumstances where the defendant had for some time been unmedicated because of his having a lithium toxicity resulting from his medication.

1. The events in question are very concerning, as is the symptoms involved in the defendant's mental illness. I note also the comments of both of the assisting psychiatrists in relation to the delusional aspect to the defendant's mental illness, particularly in the context of the defendant having chronic symptoms of delusions about his wife's infidelity.  Those matters point very strongly to the need for a forensic order.

1. Accordingly, I order that the defendant be detained to the Royal Brisbane and Women's Hospital Authorised Mental Health Service.  I approve limited community treatment commence immediately at the discretion of the treating psychiatrist on the conditions contained in the submission from the Director of Mental Health, which provide for a residency condition, a requirement that the defendant attend upon Dr De Silva on 1 December at 11 am, comply with the requirements of the authorised psychiatrist, refrain from use of alcohol and drugs, cooperate with the random medical tests and that he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.