Re LQD - [2016] QMHC 4

MENTAL HEALTH COURT

CITATION:

Re LQD [2016] QMHC 4

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LQD

FILE NO/S:

No 0161 of 2015

DELIVERED ON:

04 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2016

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr EN McVie
Dr RE Phillipson

ORDER:

1.   At the time of the alleged offence the defendant was not of unsound mind within the meaning of the Schedule to the Mental Health Act 2000.

2.   The defendant is fit for trial.

3.   The alleged offence is to proceed according to law.

4.   Copies of the reports and of the transcript are to be released to the parties for use in the criminal proceeding.

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health

D Kovac for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health

Director of Public Prosecutions

By reference, filed 24 June 2015, Legal Aid Queensland referred to this Court the mental condition of LQD at the time of an offence of cruelty to children under 16 years, alleged to have been committed between 21 August 2012 and 13 February 2013.
There is no dispute the defendant is currently fit for trial. At issue is whether the defendant was of unsound mind at the time of the alleged offence.
Background
The defendant was born on 22 October 1973. She had been in a stable relationship for over 15 years. There are four children from that relationship. The defendant’s three older children were born on 29 August 2005, 28 February 2008 and 28 July 2010 respectively. The victim of the alleged offence is the youngest child.
The defendant has no previous forensic history. The defendant has a past history of illicit substance use in her teens and early twenties but not in recent times. The defendant has no recorded family psychiatric history. The defendant reports a past diagnosis of postnatal depression following the birth of her daughter in 2008.
Alleged offence
The victim of the alleged offence was born on 22 August 2012. His birth weight was 2.785 kilograms. The defendant returned home shortly after his birth. She was actively breast feeding him thereafter. The defendant was also caring for her three other children, with apparently little support from her partner.
Soon after the child’s birth, a home visiting midwife noted the child had lost a significant amount of body weight. The defendant was advised to supplement her breast feeding with formula. It is alleged the defendant replied that she would not use formula as she had breast fed all of her previous children. She would, instead, increase her breast feeding to every two hours.
On 4 September 2012, the defendant’s baby was admitted to hospital. He weighed 2.528 kilograms. The defendant was provided with a supplementary formula milk feeding plan. Subsequent check-ups on 10 September 2012 and 8 October 2012 revealed the defendant’s baby had increased in weight. On the first occasion he weighed 2.7 kilograms. On the second occasion he weighed 3.185 kilograms.
On 22 January 2013, the defendant presented at hospital with her daughter, who had been born in 2010. She reported her daughter had fallen and injured her arm. Hospital staff observed the defendant’s baby appeared severely underweight and looking ill. The defendant advised she was not seeking attention for him.
The defendant’s daughter was alleged to have fallen some 3.5 metres from a verandah. The defendant was noted to be not overly concerned about her condition. The daughter was also observed not to have a secure attachment to her mother. Hospital staff were concerned as to the defendant’s defensiveness and as to the circumstances of her daughter’s injury. The defendant left hospital but a referral was made to the Department of Child Safety.
On 11 February 2013, Child Safety staff conducted a home visit. It was recorded that the defendant admitted “some concern” about the baby’s weight and was aware that he had lost some weight. The defendant confirmed that despite that concern she had not consulted any health practitioner. She confirmed she had not taken the baby to see a doctor about his weight or for any other reason since October 2012.
Child Safety officers observed the defendant had few, if any, supports. The defendant also did not present as being concerned about her baby’s weight. She explained it away saying all of her children were small babies.
Child Safety officers observed that the baby was severely underweight, wasted in appearance and yellow in colour. The baby also did not have any head control. They took the baby into their care and conveyed the baby to hospital. The baby was found to weigh 3.72 kilograms and was described as severely underweight for his age. The baby was immediately admitted to hospital.
On 18 February 2013, a family meeting was held with the defendant, her partner and health professionals. A report subsequently prepared by Child Safety opined that the baby’s parents failed to see his severe underweight status as an issue and failed to appreciate the seriousness of his medical health. Both advised their children were of small build.
The baby remained in hospital until 21 February 2013. On discharge, the baby was placed in foster care. The baby then weighed 4.315 kilograms. On 26 February 2013, child safety officers interviewed the defendant’s partner. He acknowledged difficulties in the family and various stresses and strains upon the defendant. He described the defendant as stubborn.
Subsequently, application for a Child Protection Order was made, on the basis of the presence of expected developmental and/or psychological issues caused by malnutrition, the denial of harm by the baby’s parents, mental health concerns in respect of the defendant and the defendant’s failures to adhere to the supplementary formula milk feeding plan. The application also referred to the fact that the baby’s failure to thrive was not as a result of any organic cause.
Reporting psychiatrists
Dr Mann
Dr Mann assessed the defendant on 15 January 2015. The defendant provided a past history of postnatal depression in 2008 following the birth of her daughter for which she was admitted to a facility for some days. She continued to exhibit depressive symptoms for around six weeks. The defendant reported that towards the end of her last pregnancy she felt horrible and lethargic and unsupported by her partner. Upon coming home after the birth, she felt exhausted, rushed off her feet and weighed down by illness. The defendant acknowledged an awareness of the circumstances of the alleged offence but expressed disbelief about her baby being unwell. She disputed the baby had even been underweight.
Dr Mann opined that at the time of the alleged offence the defendant was suffering from postnatal depression which constituted a mental disease. In his opinion, the defendant became depressed towards the end of her pregnancy. As a consequence of that depressed episode, the defendant was deprived of the capacity to know she ought not do what she did, namely failing to provide her child with adequate nutrition. The defendant was also deprived of the capacity to know the nature of her acts. Accordingly, Dr Mann supported a finding of unsound mind.
Dr Mann maintained those opinions in evidence. He opined that her depression was severe and possibly of delusional proportion. Her concerns about possible conspiracies crossed the line into delusional ideas. He acknowledged it was a difficult assessment, as his rapport with the defendant was very superficial, but was satisfied the defendant was deprived of those capacities at the time of the alleged offence by reason of her mental disease. The fact the defendant was adequately caring for her remaining children with virtually no support were strong pre-disposing factors to the suffering of a depressive episode, rather than being inconsistent with a deprivation of capacity.
Dr Mann accepted that if the defendant’s depression was as serious as he indicated, he would have expected her to exhibit symptoms obvious to professionals who were seeing her at the relevant time. However, Dr Mann considered it was likely she was not very engaging or forthcoming with those professionals and may have “flown underneath the radar”. Dr Mann acknowledged there were personality factors that were also relevant to her behaviour at the time of the alleged offence but considered the severity of the depression outweighed the effect of any personality factors.
Dr Mann acknowledged that the defendant was reported to have responded to the requests of health practitioners to supplement her breast feeding with an acknowledgment that she would not give formula but would increase her breast feeding to every two hours. Whilst that response was consistent with an acknowledgement of a problem, Dr Mann opined that that acknowledgement was more likely an attempt to have the health practitioners leave her alone, rather than exhibiting an actual appreciation that her baby was dangerously malnourished. In his opinion, the defendant’s depressive illness prevented her from recognising that the baby was unwell.
Dr Arthur
Dr Arthur assessed the defendant on 29 October 2015. The defendant gave a similar past history of postnatal depression at the time of her daughter’s birth. She also gave a similar history of feeling overwhelmed and of lacking support at the time of her last pregnancy.
Dr Arthur opined that the defendant suffered from a major depressive episode in the peri-partum period but it was currently in remission. The defendant also had personality vulnerabilities. In his opinion, it is likely the defendant was suffering from postnatal depression at the time of the alleged offence. Dr Arthur noted the defendant had a number of risk factors for postnatal depression, including social isolation, a sense of disempowerment and a perceived lack of emotional support from her partner.
In Dr Arthur’s opinion, the defendant is unlikely to have suffered psychotic symptoms as part of that depression. Her presentation was more of a mistrustful person rather than a paranoid person. Accordingly, Dr Arthur was not convinced the defendant was psychotic at the time of the alleged offence.
Dr Arthur opined:
“There appears to be no evidence that [the defendant] acted maliciously to harm her son Kaiden although appeared to be somewhat emotionally disconnected from him (and perhaps the other children) by virtue of her depressive illness.
Whilst I believe it more likely than not [the defendant]’s capacity to know what she was doing (under-feeding the baby) was impaired by virtue of her depression, I do not believe this reached the point of deprivation and therefore do not support a defence of unsoundness of mind in relation to the charge. I do however believe that her judgement was severely impaired by her depressed state; whilst her post hoc justification and ongoing denial of the severity of Kaiden’s malnutrition may appear somewhat callous, I see it more as a desperate attempt to save face by a socially isolated and vulnerable woman.”
(emphasis in original)
Dr Arthur maintained those opinions in evidence. He accepted it was difficult to make a judgment as to the severity of the defendant’s symptoms at the time of the alleged offence as she was reticent to even acknowledge her symptoms and she had an unusual personality structure that impacted on her awareness of her own mood state and on her willingness to honestly express it to others such as medical practitioners.
However, some observations could be made from the collateral information. There was reference to a sense of emotional disconnection from her children and a flat effect which were consistent with a diagnosis of depression. In Dr Arthur’s opinion it was therefore reasonable to assume that the defendant was suffering from a depressive disorder, most likely postnatal depression at the time of the alleged offence. She was undoubtedly stressed and unable, because of her personality structure, to acknowledge her difficulties. This made her situation quite miserable and difficult.
Dr Arthur was not satisfied the defendant’s depression was of such a severity that she was deprived of any of the requisite capacities. The defendant was functioning reasonably well and was still maintaining her household.
Further, the defendant had her own ideas about what was appropriate and inappropriate for her children. The defendant intended to breast feed as she had breast fed all of her other children. The defendant had beliefs that formula feeding was not healthy for her baby.
In Dr Arthur’s opinion, the defendant’s behaviour during the alleged offence reflected an avoidant coping strategy whereby she would acknowledge what she was being told but did not really listen and decided to do her own thing. Dr Arthur accepted there was a degree of denial in relation to the baby’s wellbeing. There was also undoubtedly a cognitive impairment by reason of the depression. However, there was no deprivation of any of the requisite capacities. The defendant’s personality was the predominating factor, rather than the depression.
Dr Arthur confirmed that his opinion that the defendant was not deprived of any of the requisite capacities was based on a lack of evidence of any severe cognitive or functional impairments and there being no evidence of overt psychosis. Further, there was clear evidence of the defendant’s personality affecting her ability to appreciate the involvement of others in her life. She is suspicious of the medical profession and had issues with her own sense of self-efficacy. Whilst she may not necessarily have felt confident enough to discuss her opinions, she had her own ideas and opinions about breast feeding and the use of formula.
Dr Arthur accepted there was a significant element of denial in her behaviour. Dr Arthur also accepted the defendant’s depression would have had an effect on her motivation and on her ability to think clearly. However, he did not accept her depression was so severe as to have deprived her of any of the requisite capacities. Dr Arthur did not consider the defendant was still depressed at the time he assessed her. She was, however, unhappy.
Ultimately, Dr Arthur accepted that the defendant’s depression and her underlying personality structure were two things that affected her ability to reason with a normal degree of sense and composure but that depression alone was not enough to make her incapable of so reasoning. Her capacity to reason was severely impaired but the defendant would have been aware that starving her baby was the wrong thing to do.
Dr Arthur agreed that it appeared likely the defendant had had two previous episodes of postnatal depression. There was no evidence that in either of those previous episodes there was any neglect of her children. Whilst this suggested her situation was direr than perhaps the previous two pregnancies, there were clearly issues about choices and the reasons she made those choices. These choices were due to the substrate of her underlying personality and how she coped with this crisis.
Dr Schramm
Dr Schramm assessed the defendant over approximately four hours on 26 November 2015. During this time he developed a rapport with the defendant. As a consequence, he was able to extract a much more detailed history of the circumstances surrounding the alleged offences.
In his opinion, the defendant lived a life of anxiety and social avoidance, with an inability to trust others and not little unhappiness. It was an unhappy existence in the nature of a chronic dysthymic disorder.
The defendant disclosed experiencing at least five previous episodes of serious depression such that a recurrent major depressive disorder was an appropriate prognosis. Three of those episodes seem to have occurred in the postpartum period. The defendant also had many traits of paranoid personality disorder with a pervasive sense of inadequacy reminiscent of an avoidant personality disorder.
Dr Schramm opined the defendant had a diagnosis of a major depressive disorder on top of a chronic dysthymic disorder. She also had mixed personality disorder with paranoid and avoidant traits. Anxious rumination was a characteristic of her existence. The defendant did not exhibit any symptoms of true psychosis. Her suspicious attitudes and worrying had led her to protect her children from mainstream advice such as baby formula.
In Dr Schramm’s opinion, the defendant was suffering from a major depressive episode at the time of the alleged offence. During the months of offence, the defendant was unsupported and overwhelmed looking after four children and enduring an untreated severe biological depression. This depression exacerbated her sense of hopelessness and unworthiness. As a consequence, she had great difficulty identifying the need for help and in seeking that help. To have agreed to augment her breast milk with formula was tantamount to being a failure as a mother.
In Dr Schramm’s opinion, the defendant’s major depression was of such a severity that she was deprived of the capacity to reason with a moderate degree of sense and composure as to the wrongness of her actions, and of the capacity to know what she was doing. Dr Schramm accepted the defendant’s intrinsic attitudes and vulnerabilities assisted that defective assessment but considered the untreated major depression was the important factor that tipped the scales.
Dr Schramm maintained those opinions in evidence. He accepted the defendant’s actions were, in part, formed by her personality style but considered the severity of the depression was the cause of her deprivations of capacities. The fact that health professionals did not observe obvious signs of depression was not surprising as the defendant’s personality was such that she was likely not to have volunteered information to those professionals.
Dr Schramm opined that as a consequence of her depression, the defendant was deprived of the capacity to reason, with a moderate degree of sense and composure, about responding to the advice of those professionals. She did not perceive the child was sick or severely underweight and would have dismissed the concerns of those professionals. The defendant responded to that advice by saying she would increase the rate of breast feeding, in order to placate the professionals. It was not an understanding of the gravity of the situation. Her depressive features fuelled the effect of the severe depression, producing faulty thinking as to the advice of those professionals.
Dr Schramm opined that the defendant was still significantly depressed at the time of his assessment. She had a flat effect, was avoidant and had a very negative view of herself. He considered the defendant was in need of treatment but did not refer her for treatment as he did not think her or her family were at dire risk. Her symptoms were much more than the common symptoms of a busy mother with difficult children. The symptoms included feelings of guilt and thoughts of suicide. He was not surprised other health professionals did not refer her for treatment, despite the severity of her depression. The defendant was a quiet, reticent, reluctant woman fearful of mainstream medical care.
Submissions
The defendant submits the Court would prefer and accept the opinions of Dr Schramm. There was evidence of symptoms of severe depression throughout the period of the alleged offence. The defendant’s actions were consistent with a person who was deprived of the capacities to know what she was doing and to reason with a moderate sense of composure as to the wrongness of her actions. The fact she volunteered she would increase the frequency of her breast feeding was not inconsistent with that conclusion. That response was based on a lack of appreciation of the child’s condition, which was due to her severe depression.

The defendant further submitted the defendant’s personality features were not sufficient to have informed that process. The explanation was severe depression. Whilst Dr Arthur opined that the defendant’s ability to reason with a moderate degree of sense and composure about the wrongness of her actions was only severely impaired, the evidence as a whole supported the conclusion that her failure to provide the most basic of necessities was due to a deprivation of her capacity to rationally think about her actions.
The Director of Public Prosecutions (“DPP”) submits that whilst there is evidence the defendant was suffering from postnatal depression at the relevant time, the objective evidence does not support a conclusion the defendant was, as a consequence of that mental illness, deprived of any of the requisite capacities. There was no objective evidence to support a conclusion the defendant was severely depressed at the time of the alleged offence. There was clear evidence the defendant had significant personality issues. As a consequence, she had fixed views in relation to breast feeding and the use of formula supplements.
The DPP submits the Court would not accept the opinions of Dr Schramm and Dr Mann. They were based on a conclusion that the defendant was very severely depressed, which was not supported by the objective evidence. Those opinions also failed to have proper regard for the intrinsic nature of her personality. There was no basis to accept that the defendant was deprived of either the capacity to know what she was doing or of the capacity to know she ought not do the acts in question.
The DPP submits it is significant none of the health professionals who observed the defendant at the time of the alleged offence expressed any concerns about her presentation or the presence of a severe depression. Whilst the defendant was exhibiting symptoms which would be consistent with depression, these health professionals did not make observations consistent with the presence of a severe depression.
Further, the defendant’s responses to the advice to supplement her breast feeding were suggestive of a clear understanding of what she was doing and of a deliberate decision not to provide adequate care and medical attention to her baby. The fact the defendant initially took some steps to address the authorities’ concerns was inconsistent with the deprivation of any of the requisite capacities, as was her ability to care for her remaining children, including seeking medical assistance for her daughter when she fell a distance from a back verandah.
The Director of Mental Health submits there is no reliable evidence as to the severity of the defendant’s depression at the time of the alleged offence. Whilst Dr Schramm seemed to obtain the best history of the circumstances of the alleged offence, there was evidence the defendant had significant personality traits.
Assisting psychiatrists
Dr McVie advised I ought to accept that the defendant has suffered recurrent episodes of postnatal depression. However, there is no clear contemporaneous evidence of a severe depressive illness at the time of the alleged offence. There was a clear history of an underlying belief system and of distrust with mainstream health services. The defendant’s personality style was avoidant and paranoid. She avoided confrontation and had her own methods of mothering her children.
Dr McVie advised there was no evidence to support Dr Mann’s diagnosis of a depressive illness with psychotic features. Further, Dr Mann failed to consider her pre-existing personality vulnerabilities, her response to being charged and her fears for her own and her family’s future.
Dr McVie advised that if the defendant’s depression was so severe as to have deprived her of any of the requisite capacities, it is difficult to see how she would have been able to adequately care for her other three children. There was no evidence to suggest that they were neglected in any way.
Dr McVie advised that the opinions of Dr Schramm and Dr Arthur were close. Dr Schramm preferred to combine all of her surrounding stressors and coping strategies and pre-existing vulnerabilities into a picture of a severe depressive illness which deprived the defendant of the capacities to understand what she was doing and to know she ought not do the act. Dr Arthur considered her postnatal depression was but one of the factors that contributed to a significant impairment of her capacity to know she was not feeding her child properly.
Dr McVie advised I ought to accept there was no evidence of a deprivation of any of the requisite capacities. Whilst there was impairment, that impairment was the product of a pre-existing belief system, her maladaptive coping strategies and her depressive illness.
Dr Philipson advised that whilst the evidence was finely balanced, the consideration of the material as a whole supported the conclusion that the defendant’s capacity to reason with a moderate degree of sense and composure about the wrongness of her conduct was impaired, but not deprived, at the time of the alleged offence.
Discussion
Each of the reporting psychiatrists opine that the defendant was suffering postnatal depression at the time of the alleged offence. I accept the defendant was suffering postnatal depression at that time. That conclusion is reached against a background of at least one previous episode of postnatal depression.
I also accept the defendant had significant underlying personality traits. Those personality traits are significant, particularly in the context of a mother who had clear views as to how she would bring up her children in the context of a clear mistrust of health professionals. The defendant also had strong views as to the importance of breast feeding children and the inappropriateness of using milk supplements.
The dispute between the reporting psychiatrists is as to the severity of that postnatal depression and the significance of those underlying personality traits. Whilst Dr Schramm and Dr Mann opine that the defendant’s postnatal depression was severe, a consideration of the objective evidence does not support such a finding.
First, there is no support in the evidence for Dr Mann’s conclusion that the defendant was psychotic at the time of the alleged offence. There is no basis to conclude the defendant was suffering such a severe depressive episode that she was delusional. Dr Schramm does not support such a conclusion. The observations of others at the time of the alleged offence also does not support that conclusion. I do not accept Dr Mann’s opinion.
Second, whilst Dr Schramm opines that the defendant’s postnatal depression was of such a magnitude that it deprived her of two of the requisite capacities, the objective evidence does not support the existence of postnatal depression of such a magnitude. The defendant was functioning at a level which allowed her to properly care for each of her other children, despite an environment of isolation and lack of support. The defendant was able to take her daughter to hospital when she fell a considerable distance from a verandah, injuring her arm. Whilst the defendant at that time did not exhibit particular concern for her daughter, that response seems to be consistent with the observations of the daughter who was not complaining of pain.
Importantly, the health professionals who were dealing with the defendant at the time did not report any symptoms consistent with the existence of severe postnatal depression. Whilst the defendant may not easily engage with health professionals, it would be surprising health professionals did not observe such symptoms if the defendant’s postnatal depression was as severe as described by Dr Schramm. They were dealing with a mother whose child was losing weight and who was the subject of counselling to ensure she introduce milk supplements to properly care for her child. It is inconceivable they would not have been observing the defendant during this period, if only for an explanation as to the deterioration in her child’s health.
Further, the defendant did not simply ignore the advice of those health professionals. She was recorded as acknowledging their concern as to the need for milk supplement. However, she was not prepared to use supplements. Instead, she volunteered she but would increase her breast feeding regime. Such a response is inconsistent with a deprivation of the capacity to reason with a moderate degree of sense and composure. It is consistent with a retention of some capacity to reason with a moderate degree of sense and composure about the rightness or wrongness of her conduct.
Her other actions, and her ability to care properly for her other children were also inconsistent with a deprivation of that capacity or of any other relevant capacity at the time of the alleged offence. Whilst I accept the defendant’s postnatal depression was of a magnitude that it impaired her capacity to know she ought not do what she did, I do not accept Dr Schramm’s opinion that her postnatal depression was of a magnitude to deprive her of that capacity or of the capacity to know what she was doing.
I accept and prefer Dr Arthur’s opinion. I find his analysis cogent, and his conclusions were clear and persuasive. Those conclusions were consistent with the objective evidence. I accept the defendant’s conduct was a reflection of her personality traits and strong views about mothering techniques, rather than due to any deprivation of that capacity.
I accept that the defendant, at the time of the alleged offence, was suffering from a mental illness, namely, postnatal depression. I accept that as a consequence of that mental illness her capacity to reason with a moderate degree of sense and composure as to the rightness or wrongness of her actions was impaired. The fact the defendant did not recognise her breast milk was insufficient to sustain her child is supportive of an impairment of that capacity at the time of the alleged offence.
However, I do not accept there was any deprivation of that capacity. Her responses were inconsistent with a deprivation of any of the requisite capacities.
Conclusions
The defendant was not of unsound mind at the time of the alleged offence. The defendant is fit for trial. The proceeding ought to continue according to law.
Orders
1.      At the time of the alleged offence the defendant was not of unsound mind within the meaning of the Schedule to the Mental Health Act 2000.
2.      The defendant is fit for trial.
3.      The alleged offence is to proceed according to law.
4.      Copies of the reports and of the transcript are to be released to the parties for use in the criminal proceeding.

CITATION:	Re LQD [2016] QMHC 4
PARTIES:	REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LQD
FILE NO/S:	No 0161 of 2015
DELIVERED ON:	04 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2016
JUDGE:	Boddice J
ASSISTING PSYCHIATRISTS:	Dr EN McVie Dr RE Phillipson
ORDER:	1. At the time of the alleged offence the defendant was not of unsound mind within the meaning of the Schedule to the *Mental Health Act* 2000. 2. The defendant is fit for trial. 3. The alleged offence is to proceed according to law. 4. Copies of the reports and of the transcript are to be released to the parties for use in the criminal proceeding.
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health D Kovac for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions