Re LPK

[2015] QMHC 5

MENTAL HEALTH COURT

CITATION:

Re LPK [2015] QMHC 5

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF LPK

FILE NO/S:

No 200 of 2013

DELIVERED ON:

16 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2015

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E McVie
Dr F Varghese

ORDER:

1.   At the time of the alleged offences of wilful damage on 29 May 2013, assault or obstruct police and common assault, both on 31 May 2013, and wilful damage on 20 June 2013, the defendant was not suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

2.   In respect of each of those alleged offences, the defendant is fit for trial.

3.   Each of those alleged offences is to proceed according to law.

4.   Copies of the reports are to be provided to the parties in those criminal proceedings.

5.   In respect of the two alleged offences of wilful damage on 22 June 2013, the defendant was suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

6.   The defendant be detained pursuant to a forensic order to the Logan-Beaudesert Network Authorised Mental Health Service.

7.   Limited community treatment be approved, at the discretion of the authorised psychiatrist, on the conditions set out in the draft proffered by the Director of Mental Health.

8.   Copies of the reports and of the transcript be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with wilful damage, assaulting or obstructing police and common assault – whether the defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of that offence – whether a forensic order should be made

Mental Health Act 2000 (Qld)

COUNSEL:

P Clohessy for the Director of Public Prosecutions
J Tate for the Director of Mental Health

J D Briggs for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions
Crown Law for the Director of Mental Health

Legal Aid Queensland for the Defendant

1. BODDICE J: By Notice of Reference filed 30 July 2013, the Director of Mental Health referred to this Court the mental condition of LPK at the time of alleged offences of wilful damage, on 29 May 2013; assault or obstruct police and common assault, both on 31 May 2013; wilful damage, on 20 June 2013; and two further offences of wilful damage, on 22 June 2013.

2. The Court has the benefit of the police brief, including witness statements and transcripts of an electronically recorded interview, together with extensive clinical and other records in relation to the defendant’s prior medical and psychiatric histories.  The Court also has reports from Dr Jillian Spencer, Professor Barry Nurcombe and Dr Michael Beech.  Dr Spencer, Dr Beech and Dr Nurcombe gave evidence at the hearing.

3. There is no dispute the defendant is fit for trial.  At issue is whether the defendant was suffering unsoundness of mind at the time of any of the alleged offences.

   Background

4. The defendant was born on 21 June 1998.  She was 14 years of age at the time of the commission of each of the alleged offences, bar the last two alleged offences of wilful damage, which are said to have occurred the day after she turned 15 years of age.

5. The defendant was born in Australia.  Both her parents are Chinese.  They met in Malaysia, both previously living in Vietnam.  Her parents lived in Australia for many years before the defendant’s birth.  The defendant and her parents have a strained relationship.  The defendant has made allegations of physical, emotional and sexual abuse against her father over many years. 

6. There is a reported history of non-compliance and defiance on the defendant’s part in relation to her parents from the age of 10.  In 2012, the defendant was placed in the care of the Department of Child Safety.  The defendant has had multiple placement breakdowns in foster care arrangements, in part due to her behavioural difficulties, which have included aggression, property damage and threats to commit suicide.  For a large part of 2012 and early 2013, the defendant was absent from school.

7. The defendant has a history of self-harm.  She has threatened to commit suicide in the past.  On one occasion she was reported as telling emergency staff at the Logan Hospital she had no intention of actually committing suicide; her goal was to be placed in foster care.  At the time she was living with her aunt and uncle. 

8. The defendant’s behaviour has resulted in suspensions from school.  Consistent reports in relation to the defendant’s behaviour, both by those associated with her care and medical staff who have undertaken examinations of her following instances of reported self-harm, have all referred to her attitude and agitation. 

   Offences

9. The alleged offences arose out of incidents at a Youth Lifestyles Option residence.  It is alleged the defendant had a disagreement with a residential care worker on 29 May 2013.  During that disagreement, the defendant allegedly damaged property.  On 31 May 2013, it is alleged the defendant became agitated and punched a worker before kicking the door of the dwelling.  She subsequently punched the worker again.  Police were called and the defendant was taken to the Crestmead Police Station.  While there, it is alleged the defendant was placed under arrest and struggled with police.

10. On 31 May 2013, the defendant was interviewed by police in relation to the alleged offences on 29 and 31 May 2013.  During that interview the defendant admitted damaging property on 29 May 2013, and assaulting the worker on 31 May 2013.  The defendant said she was remorseful for her behaviour.  The defendant also said, in relation to her behaviour at the police station, she was “just agitated”.

11. The alleged offence of wilful damage on 20 June 2013 also arose out of an incident at the residence, where it is alleged the defendant became agitated and caused a disturbance.  She subsequently damaged property.  On 22 June 2013 police were again called to a disturbance at the residence.  It is alleged the defendant damaged vehicles located in a neighbour’s driveway.  In respect to these latter offences, the defendant either refused to answer questions or said she had no memory of the incident.

    Reporting psychiatrists

12. Professor Nurcombe interviewed the defendant on 15 August 2013.  In his initial report, Professor Nurcombe opined the defendant’s behaviour was consistent with emerging borderline personality disorder.  There was no evidence of psychotic thought disorder, and no convincing evidence the defendant was as a consequence of any mental illness deprived her of any of the requisite capacities at the time of any of the alleged offences the subject of the reference. 

13. In reaching these conclusions, Professor Nurcombe noted the defendant had been evaluated by a social worker on 10 April 2013 because of threatened self-harm.  At that time, there was no evidence of psychosis and the defendant was attentive, oriented, and not thought-disordered, and had no problem distinguishing fantasy from reality.  A further evaluation on 15 May 2013 also did not reveal any evidence of psychosis. 

14. Professor Nurcombe also noted an examination at the Mater Hospital revealed the defendant was co-operative, although vague.  She reported feeling very paranoid and being in a dark place and was anxious.  However, when told that she would be returned to placement, she became oppositional.  A subsequent review by that hospital, on 30 May 2013, contained reports of memory problems, confusion and being paranoid.  The defendant was reported to be similarly uncooperative and agitated when examined at the emergency department of the Logan Hospital on 16 June 2013.

15. In a subsequent report, Professor Nurcombe noted that after the defendant had been transferred to the Brisbane Youth Detention Centre in June 2013, she was reported as being unresponsive and uncooperative.  Her behaviour thereafter deteriorated to the point where she was incontinent and her self-care declined significantly.  Diagnoses of dissociative disorder and abnormal illness behaviour were considered at this time.  She was subsequently transferred to the Logan Hospital.  Whilst there she regressed and became disorganised in the ensuring days.  After approximately two weeks on medication, the defendant was recorded as being calm but showing no thought disorder.  Whilst she was guarded, she denied auditory hallucinations.

16. Professor Nurcombe noted the defendant’s condition had improved significantly since that time.  Whilst that improvement coincided with regular treatment with antipsychotic medication, Professor Nurcombe opined it was more likely the improvement was a consequence of well-organised therapy and the significant support the defendant was now receiving, rather than the antipsychotic medication.  In Professor Nurcombe’s opinion, this improvement was consistent with a diagnosis of borderline personality disorder.

17. Professor Nurcombe opined that having regard to that history, there was no evidence of unsoundness of mind at the time of the alleged offences on 29 May 2013, 31 May 2013 and 20 June 2013.  There may well have been an impairment of the requisite capacities, as a result of a natural mental infirmity, which Professor Nurcombe opined was emerging borderline personality disorder, but there was no deprivation of capacity. 

18. However, on 22 June 2013 there was evidence the defendant was so severely psychologically disturbed that it was likely she was deprived of at least the capacity to control her behaviour.  Professor Nurcombe was unsure whether that was as a consequence of a mental disease, such as schizophrenia, or by reason of her natural mental infirmity, or a combination of both conditions.  He considered it unlikely she was affected by delirium caused by physical illness.

19. Professor Nurcombe maintained those opinions in evidence at the hearing.  However, on reviewing the records, Professor Nurcombe accepted the defendant was behaving in a disinhibited fashion in the week before her placement in Youth Detention.[1]  This was consistent with severely disorganised behaviour.  Having considered that information, Professor Nurcombe opined the defendant was sufficiently unwell so as to have been deprived of the capacity to control her actions on 20 June 2013.

    [1]     T1-22/25.

20. Dr Jillian Spencer first examined the defendant on 9 July 2013, and was involved in her ongoing care thereafter.  In her opinion, the defendant had recently suffered her first psychotic episode.  This episode had been preceded by increasingly bizarre behaviours, agitation and suspiciousness.  She also appeared to have developed persecutory ideation about her carers.  The defendant’s mental state then deteriorated into florid psychosis with severe behavioural disturbance upon admission to the Youth Centre.  That behaviour continued whilst the defendant was an inpatient at Logan Hospital, although it improved over time following her treatment with antipsychotic medication.

21. Whilst Dr Spencer accepts the defendant continues to demonstrate bizarre and intrusive behaviour, which would be consistent with autism spectrum disorder, the alleged offences occurred in the consequence of a lead up to the defendant’s first psychotic episode, at which time the defendant was floridly psychotic.  Dr Spencer opined that on the balance of probabilities, the defendant’s mental illness, at the time of each of the alleged offences the subject of the reference, was such that she was deprived of the capacity to understand the wrongfulness of each of the acts in question.  She could not reason with a moderate degree of sense and composure because she was suffering persecutory delusions, disorganisation and impaired judgment due to her emerging psychotic illness.  Dr Spencer maintained these opinions in evidence.

22. Dr Beech interviewed the defendant on 11 December 2013.  He noted the defendant had a significant past history of exaggerated or regressed behaviours, emotional instability, impulsivity and attempts at manipulation (through self-harm and threats).  There had been an increase in this disturbed behaviour in May 2013, in the context of attempts at reconciliation and re-placement of the defendant with her family.  The defendant responded with simple oppositional behaviours.  Once the defendant was placed in detention there was a marked regression in her presentation with odd behaviours, poor self-care, disorganisation and apparent delirium.  After treatment at the hospital her mental state improved, although there continued to be evidence of ongoing regressed behaviour.

23. In Dr Beech’s opinion, whilst the defendant’s presentation is complex, the notable features were her emotional instability, her use of self-harm and other measures to get her way, and her regressed behaviour at times.  Whilst she regressed significantly in the detention centre, and in hospital after the alleged offences, that regression was characterised primarily by disorganisation, poor communication, disinhibition, and irritability rather than any clear evidence of formal thought disorder, delusional thinking or clear perceptional abnormalities.  It was notable that an assessment a few days before her arrest had shown no significant indication of prodromal psychosis, although the defendant did voice some apparent persecutory ideation.  The defendant’s interview with police on 31 May 2013 also did not indicate psychotic thought processes.

24. In Dr Beech’s opinion, there is no basis to state with confidence that the defendant has a mental illness.  Whilst she is young and her presentation is severely disturbed, and may be consistent with the heralding of an emerging illness such as bipolar affective disorder, her presentation is also consistent with a severe emerging personality disorder with histrionic and borderline traits and a vulnerability to regression which became marked in custody.  Dr Beech did not consider there was anything to support a finding that the defendant was deprived of any of the requisite capacities at the time of any of the alleged offences.  It is likely her loss of self-control was due to frustration and anger at not getting her way, not mental illness.  Dr Beech maintained those opinions in evidence.

    Assisting Psychiatrists

25. Dr McVie advised the defendant was in a disturbed state through most of 2013, with frequent presentations to hospital, self-harming behaviour and problems with carers.  This state occurred on a background of physical and emotional abuse in the home and autistic-like social behaviours as a younger child.  By May 2013, the defendant was in an extremely disturbed emotional state.  Dr Phillips, who saw the defendant when she was initially admitted to the Brisbane Youth Detention Centre, described her state as appearing to be delirium. 

26. Dr McVie advised it was more likely than not that this extremely disturbed state existed prior to the defendant’s admission to custody in the Brisbane Youth Detention Centre.  She remained in a psychotic state for at least a week.  The defendant was then transferred to the Logan Adolescent Centre on 25 June 2013and required a six week admission.  Thereafter, she stabilised on medication.  Currently, there was no evidence of psychosis. 

27. Dr McVie advised the variance in diagnostic formulation, between a severe emerging personality disorder with prominent borderline traits, as formulated by Dr Beech and Professor Nurcombe, and schizophrenia, as diagnosed by Dr Spencer, should be considered in the context of a noted history of persecutorial ideation predating the admission, a history of deteriorating behaviour predating the admission and observations during the admission where the defendant appeared to be experiencing auditory hallucinations in the context of very severe disorganised behaviour and psychosis.  Based on that history, the preferred diagnosis would be that of schizophrenia.  Dr McVie noted that Dr Beech agreed the defendant’s presentation may well be a precursor to a development of a very serious mental illness, such as bipolar disorder or schizophrenia as an adult. 

28. Dr McVie further advised the defendant’s state at the time was severe enough to constitute a disease of the mind, on either diagnostic formulation.  That disease of the mind was such that at the time of all of the alleged offences in June 2013, the defendant’s psychotic state deprived her of the capacity to control her actions.  That condition may also have significantly impaired that capacity in May 2013, but the evidence, and in particular, the record of interview, did not support a conclusion there was a deprivation of the capacity at the time of the alleged offences in May 2013.  Dr McVie advised the defendant was fit for trial.

29. Dr Varghese advised the defendant’s presentation was complex.  Whilst it did not resemble what is traditionally described as simple schizophrenia, a diagnosis of emerging personality disorder was too simplistic an explanation.  The defendant was quite psychotic, floridly so, and out of touch with reality during her admission to youth detention and subsequently to the Logan Hospital.  Dr Spencer described the defendant’s behaviour as grossly disturbed.  That behaviour cannot be understood as arising from personality disorder alone. 

30. Dr Varghese advised that having regard to the hints of psychosis, in the form of auditory hallucinations and prosecutorial idealisation, it is legitimate to diagnose schizophrenia on the basis of mental state and behaviour.  The defendant’s condition did not satisfy the term dissociative psychosis.  The psychosis resembled a schizophreniform psychosis.  It might actually behave like schizophrenia longitudinally.  Youth detention was not a trigger, but may have been an exacerbating event in a girl with a severe personality vulnerability as a result of a seriously compromised developmental history.  Dr Varghese noted there were significant features, including a delirium clouding of consciousness, very rapid onset and gross behavioural disturbance.

31. Dr Varghese advised that whatever be the diagnosis, at the time of the alleged offence on 22 June 2013 the defendant suffered a mental illness which deprived her of the capacity to control her actions.  That condition may also have been sufficient to deprive her of that capacity on 20 June, although that conclusion was difficult to sustain when the defendant had been seen the day before and there was no evidence of psychosis at that time.  Dr Varghese advised there was little evidence of a psychosis of any type at the time of the alleged offences in May 2013.  The defendant was fit for trial.

    Submissions

32. The defendant submits the balance of clinical opinion supports a finding the defendant, by 20 June 2013, was sufficiently psychotic that she was deprived of the capacity to control her actions for all of the alleged offences committed in June 2013.  The evidence favoured a contrary finding in respect of the alleged offences in May 2013, notwithstanding Dr Spencer’s opinion that the defendant’s psychosis was of sufficient intensity or character to have deprived her of the capacity to control her actions at the time of the alleged offences in May 2013. 

33. The Director of Public Prosecutions submits there is no evidence to support a finding of unsoundness of mind in respect of the alleged offences in May 2013.  The divergence of opinion between the reporting psychiatrists in respect of the defendant’s mental state at the time of the alleged offences in June 2013 was a matter to be resolved having regard to the guidance of the Assisting Psychiatrists.

    Unsoundness of mind

34. There is no doubt the defendant, for a number of years prior to the alleged offences, exhibited significant behavioural problems in the context of physical and emotional abuse within the home.  Much of the defendant’s behaviour could be said to be attention-seeking in the context of active resistance to attempts to place her back into her home environment.  However, her behaviour deteriorated significantly by the time of her detention in the Brisbane Youth Detention Centre.

1. Whilst the defendant’s behaviour in that Centre was also consistent with her previous attention-seeking activities, I accept the advice of the Assisting Psychiatrists that her extreme conduct and recorded symptoms at that time are not simply explained by an emerging personality disorder.  I accept that by that time the defendant was behaving in a highly disorganised state.

2. Dr Spencer had the advantage of observing the defendant’s behaviour in the weeks following her admission to the detention centre.  In Dr Spencer’s opinion, the defendant’s symptoms were consistent with psychosis.  Although that diagnosis was based on inference from behaviour, the reference to voices was a psychotic phenomenon.  I accept such extreme behaviour was rarely seen in a non-psychotic adolescent.  Importantly, there was an improvement in the behaviour following administration of anti-psychotic medication.  Dr Spencer considered the improvement consistent with the presence of a psychotic illness. 

3. I found Dr Spencer’s evidence about the observed symptoms at the Centre highly persuasive.  She had the considerable advantage of observing the defendant’s symptoms during her admission.  Both Professor Nurcombe and Dr Beech accepted those observed symptoms were consistent with a psychotic episode.

4. Whilst both Professor Nurcombe and Dr Beech gave persuasive reasons why the defendant’s behavioural and other presentations, from 2011, were consistent with an emerging borderline personality disorder, her observed presentation whilst in the detention centre, and subsequently in the Logan Hospital, involved symptoms that are not explained merely by the presence of that disorder. 

5. I accept, and prefer, Dr Spencer’s opinion that by the time of the defendant’s admission to the Centre, she was suffering a psychotic episode.  That opinion is consistent with the defendant’s observed behaviour, her subsequent lengthy admission to Logan Hospital, and her subsequent improvement over time following the administration of anti-psychotic medication.

6. That conclusion supports a finding the defendant was, by at least 23 June 2013, suffering from a mental disease.  I accept that mental disease was such that it deprived the defendant of the capacity to control her actions at the time of the alleged offences on 22 June 2013.  However, the collateral material does not support a finding that mental disease deprived the defendant of that capacity, or any other relevant capacity, at the time of the alleged offences on 20 June 2013 or the earlier alleged offences in May 2013. 

7. Whilst Dr Spencer considered the defendant’s performance in the record of interview did not exclude a deprivation of the relevant capacity, I accept and prefer the evidence of Professor Nurcombe and Dr Beech in relation to those earlier offences.  In coming to this conclusion, I found Dr Varghese’s advice particularly helpful.

8. In coming to that conclusion, I acknowledge Professor Nurcombe, in evidence, accepted the defendant’s psychotic episode was of such a nature that it may well have been sufficient to deprive her of the requisite capacity to control her actions at 20 June 2013.  However, the collateral evidence supports a conclusion that the defendant, whilst becoming psychologically unwell, may have had an impairment of the requisite capacity, there is no evidence the defendant was deprived of any of the requisite capacities at the time of the alleged offence on 20 June 2013.

9. I am satisfied the defendant was suffering unsoundness of mind at the time of the alleged offences on 22 June 2013.  I am further satisfied the defendant was not suffering unsoundness of mind at the time of any of the remaining alleged offences the subject of the reference.  I accept the defendant is fit for trial in relation to those remaining alleged offences. 

   Future management

10. Dr Spencer supported the making of a forensic order.  Dr Beech opined such an order was unlikely to assist in the defendant’s future management.  Dr Beckman, in a most recent report, opined the making of a forensic order would not contribute in any material way to the defendant’s future management.

11. The Director of Mental Health submits a forensic order is not indicated in the present case.  That submission was made having regard to the offences, the defendant’s treatment or care needs, and the lack of any need for the protection of the community, having regard to the treatment relationship now existing and the defendant’s continuing involvement with that treating team.

12. The Assisting Psychiatrists advise a forensic order is clearly indicated in the present case.  Whilst the defendant was being well-managed and was compliant in the voluntary treatment arrangement, her condition was still evolving and there was likely to be a period of instability in her management when she became an adult.  Those diagnostic and treatment management uncertainties favoured a need for ongoing management.  Dr Varghese further advised that having regard to the defendant’s uncertain diagnosis, the worst thing that could occur would be for her to “stuck with the label of schizophrenia requiring depot medication on a long-term basis”, if she did not have schizophrenia.  Accordingly, a forensic order was indicated for the benefit of the defendant.

13. I have no hesitation in accepting the advice of the Assisting Psychiatrists.  The defendant, whilst well engaged and compliant under a voluntary regime, is a young person with a mental illness of uncertain diagnosis.  There is a need for the defendant to be subject to careful monitoring in the future to ensure she receives a proper diagnosis and appropriate management and treatment for her mental illness.  Her past behaviour indicates that should she become unwell, she presents a risk to herself and others in the community.

    Orders

14. I order:

    1.At the time of the alleged offences of wilful damage on 29 May 2013, assault or obstruct police and common assault, both on 31 May 2013, and wilful damage on 20 June 2013, the defendant was not suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

    2.In respect of each of those alleged offences, the defendant is fit for trial.

    3.Each of those alleged offences is to proceed according to law.

    4.Copies of the reports are to be provided to the parties in those criminal proceedings.

    5.In respect of the two alleged offences of wilful damage on 22 June 2013, the defendant was suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

    6.The defendant be detained pursuant to a forensic order to the Logan-Beaudesert Network Authorised Mental Health Service.

    7.Limited community treatment be approved, at the discretion of the authorised psychiatrist, on the conditions set out in the draft proffered by the Director of Mental Health.

    8.Copies of the reports and of the transcript be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.