Re LTM
[2011] QMHC 23
•16 June 2011
MENTAL HEALTH COURT
CITATION:
Re LTM [2011] QMHC 23
PARTIES:
APPEAL BY PATIENT AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING:
No 0136 of 2011
DELIVERED ON:
16 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
10 June 2011
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr A S Davison
Dr E N McVieFINDINGS AND ORDER:
The appeal is dismissed.1.
A copy of the transcript is to be provided to the appellant’s treating team, and to the parties.2.
CATCHWORDS:
Mental Health Act 2000 (Qld)
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where the appellant appeals against a decision of the Mental Health Review Tribunal confirming a forensic order in respect of the appellant and approving limited community treatment in accordance with specified conditions – where the appeal relates to orders that the appellant be transferred to a medium secure unit, and the imposition of conditions allowing only escorted absences from that service – where the appellant contends the Tribunal failed to give weight, or proper weight, to the recommendations of the treating doctors, to the appellant’s reducing risk factors and to the appellant’s family and community support – where the treating psychiatrist supports the Tribunal’s decision – whether the decision of the Tribunal should be upheld or set aside
MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – Where the appellant appeals against a decision of the Mental Health Review Tribunal confirming a forensic order in respect of the appellant and approving limited community treatment in accordance with specified conditions – whether the decision of the Tribunal should be upheld or set aside
COUNSEL:
J Briggs for the defendant
B McMillan for the Attorney General
J Tate for the Director of Mental HealthSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Attorney General
Crown Law for the Director of Mental Health
BODDICE J:
By notice dated 30 May 2011, the appellant, LTM, appealed against a decision of the Mental Health Review Tribunal dated 24 March 2011 confirming a forensic order in respect of the appellant and approving limited community treatment in accordance with specified conditions. Those conditions included provision for escorted absences by the appellant. The Tribunal also ordered the appellant be transferred from a regional Authorised Mental Health Service to the medium secure unit of the Prince Charles Hospital Authorised Mental Health Service.
The appellant’s appeal relates to the orders that she be transferred to the medium secure unit, and the imposition of conditions allowing only escorted absences from that service. The grounds of appeal are that the Tribunal failed to give weight or proper weight, to the recommendations of the treating doctors, to the appellant’s reducing risk factors and to the appellant’s family and community support.
The appeal is brought pursuant to s 321 of the Act. By s 325 of the Act, the Court has power to confirm or set aside the decision. In the event it sets aside the decision, the Court may make a decision the Tribunal could have made on the review or application.
The appeal is an appeal by way of rehearing. Accordingly, the matter is to be determined by reference to the state of affairs which exists at the time of the rehearing. No error need be shown in the decision of the Tribunal before re-determining the matter: Re AK (2002) QMHC 003 at [12]-[15]; Re SGA (2011) QMHC 1 at [75]. Having regard to the provisions of s 204(1)(b) of the Act, this Court could only approve limited community treatment for the patient if 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.
At the hearing of the appeal, the Court had the benefit of evidence from Dr Lahmann-Waldau, the appellant’s treating psychiatrist. Dr Lahmann-Waldau had provided a report to the Tribunal in which he noted two options would be recommendable to the Tribunal. First, admission to a medium secure rehabilitation setting. Second, staged limited community treatment whilst remaining within the community and under the care of the Sunshine Coast Authorised Mental Health Service. The Tribunal accepted the first option. Dr Lahmann-Waldau gave evidence that whilst his preferred option was the second option at the time of the Tribunal hearing, events since that hearing justified the adoption of the first option. Accordingly, with the benefit of hindsight, he now supports the Tribunal’s decision.
The events referred to by Dr Lahmann-Waldau related to non-compliance with treatment, a period where the appellant was absent without approval and the consumption of alcohol. Dr Lahmann-Waldau considered these incidents, when viewed in the context of the appellant’s medical conditions and the charged offences, rendered the more conservative approach adopted by the Tribunal the best option in the circumstances. In proffering this opinion, Dr Lahmann-Waldau noted ongoing doubts about compliance with treatment, continued dependency on illicit substances, and lack of insight by the appellant into her condition and the effects of the ongoing use of illicit substance upon that condition. A particularly concerning incident in recent times was the use of illicit drugs by the appellant shortly prior to having access to her children.
The appellant’s legal representative questioned Dr Lahmann-Waldau in relation to a number of concerns expressed by the appellant. These concerns related to the retention of her current accommodation, her explanation for being absent without leave, the very small quantity of alcohol ingested, the cessation of any use of illicit drugs, the great restriction imposed on access to her children, the stability of her current condition and the uncertainty imposed on her by reason of the conditions specified by the Tribunal. Dr Lahmann-Waldau acknowledged those concerns but considered the factors identified by him rendered the approach adopted by the Tribunal appropriate in all the circumstances.
The Court had the benefit of advice from the assisting psychiatrists, Dr McVie and Dr Davison. This advice was particularly helpful in relation to whether transfer to a medium secure unit was appropriate in the circumstances. Dr McVie advised that transfer as an inpatient to a medium secure unit was entirely appropriate to allow the appellant’s therapeutic and other needs to be properly addressed. Admission as an inpatient will allow the development of a proper management plan in circumstances where the appellant has a longstanding psychotic illness with the very concerning feature of a return to the use of illicit substances whilst accessing her children. That behaviour indicates a significant risk which, when considered against the original charges, suggests that consideration should be given to not even allowing the appellant supervised access to her children at this time. Dr McVie advised that consideration should have been given to inpatient admission to a high secure unit but accepted a medium secure unit was sufficient. Dr McVie also advised the conditions imposed on limited community treatment by the Tribunal were appropriate. Dr Davison agreed with Dr McVie’s advice. Dr Davison advised there was a need for an engagement between the appellant and her treating team so as to develop trust, and so that the relationship could become more open and honest.
I was impressed with the evidence of Dr Lahmann-Waldau. That evidence indicated Dr Lahmann-Waldau had, both before the Tribunal and this Court, considered the options available for the appellant’s ongoing care and treatment and was now satisfied the orders made by the Tribunal were the most appropriate method of dealing with the appellant’s ongoing conditions and, in particular, her lack of insight into that condition and the ongoing use of illicit substances. I accept Dr Lahmann-Waldau’s evidence.
Having regard to the nature of the offences with which the appellant was charged, her mental condition, and her ongoing lack of insight, I am satisfied the order transferring the appellant to the medium secure unit of the Prince Charles Hospital Authorised Mental Health Service was appropriate, as were the conditions limiting the appellant to escorted leave of absence. To allow the appellant to remain under the care of the regional Authorised Mental Health Service, and to grant limited community treatment on conditions other than those imposed by the Tribunal, would render the appellant an unacceptable risk to the safety of herself and the safety of others, in particular her children, having regard to her mental illness. The orders made by the Tribunal appropriately addressed those risks, such that the appellant did not represent an unacceptable risk to the safety of herself or others having regard to her mental illness.
The appeal is dismissed, and the orders of the Tribunal are confirmed.
A copy of the transcript of this proceeding is to be provided to the appellant’s treating team, and to the parties.
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