Re Macfarlane

[2015] QMHC 13

MENTAL HEALTH COURT

CITATION:

Re Macfarlane [2015] QMHC 13

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF ANGUS DAVID MACFARLANE

FILE NO:

No 109 of 2014

DELIVERED ON:

25 November 2015

DELIVERED AT:

Mental Health Court at Brisbane

HEARING DATE:

4 November 2015

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr Reddan

Dr Varghese

ORDER:

1.   At the time of the alleged offence, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld).

2.   The defendant is fit for trial.

3.   The proceedings against the defendant are to proceed according to law.

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

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant has a diagnosis of chronic treatment-resistant schizophrenia – where the defendant was charged with assault occasioning bodily harm of a nurse in a community care unit – whether the defendant was of unsound mind as at the date of the index offence

Mental Health Act 2000 (Qld)

COUNSEL:

M T Whitbread for the Director of Public Prosecutions (Queensland)
J Tate for the Director of Mental Health

C R Smith for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland)
Crown Law for the Director of Mental Health

Legal Aid Queensland for the Defendant

1. BODDICE J: By Reference, filed 3 April 2014, the Director of Mental Health referred to this Court the mental condition of the defendant, Angus David Macfarlane at the time of an offence of assault occasioning bodily harm, alleged to have occurred on 25 December 2012.

2. There is no dispute the defendant is fit for trial.  At issue is whether the defendant was of unsound mind at the time of the index offence. 

Background

1. The defendant was born in Narrabri on 9 November 1981, the youngest in a sibship of four children.  The defendant has a past history of aggression.  Collateral material indicates the defendant assaulted his father on at least three occasions, and head-butted an ex-girlfriend.  The defendant was not charged with criminal offences after any of these incidents.

2. The defendant attended both primary and secondary school in Armidale. The defendant achieved slightly above average academic results, before being expelled for cannabis usage.  As the defendant achieved comparatively higher academic results when he was younger than when he was older, one reporting psychiatrist opined the prodromal phase of schizophrenia may have occurred during his adolescence.[1]  The defendant studied philosophy at university in Armidale, but failed a subject and then dropped out.

   [1]     Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 2.

3. The defendant has previously been employed as a baker, a dishwasher, and a semi-professional piano player.  The defendant has now been unemployed for about ten years.  The defendant reports he is not motivated to apply for work.  The defendant receives the Disability Support Pension.  The Public Trustee manages the defendant’s finances.

4. The defendant is single and does not have children.  The defendant’s main support person is his mother, who purchased him an apartment and assisted him in purchasing a car, so as to facilitate him living independently.   At times, the defendant refuses contact with his mother, apparently based on delusional beliefs.

5. Since July 2013, the defendant has resided at the Somerset Villas CCU on the Rosemount campus.  The CCU is a community-based rehabilitation facility for people with severe mental illnesses.

Physical health

1. The defendant is morbidly obese and has obstructive sleep apnoea, for which he uses a Continuous Positive Airway Pressure (CPAP) machine.   The defendant smokes 25 cigarettes a day.  The defendant is using nicotine patches to reduce his cigarette consumption.  The defendant does “not really” drink alcohol.[2]  The defendant has a history of poly-substance abuse.  The defendant denies any current use of illicit drugs.  The defendant’s most recent urine drug screen was negative for illicit substances.[3]

   [2]     Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 2.

   [3]     Exhibit 1: Report of Dr Anastasia Braun dated 19 December 2013, page 5. Dr Braun’s report does not indicate whether the urine drug screen tested for the presence of alcohol.

Psychiatric history

1. The defendant was first hospitalised in New South Wales at the age of 18, after having psychotic symptoms.  Although he was hospitalised for about six months, the defendant minimises the seriousness of that episode; he said it “wasn’t that serious”[4] and denies being suspicious or paranoid.  Since then, the defendant has had multiple admissions to hospitals in Queensland and New South Wales.  The hospital admissions are typically preceded by non-compliance with his medication, after which his mental state “quickly deteriorates and he becomes floridly psychotic.”[5]  When unwell, the defendant is suspicious of, and hostile towards, hospital staff, and spends hours pacing the floor.

   [4]     Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 4.

   [5]     Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 3.

2. The defendant has been diagnosed with chronic treatment-resistant schizophrenia.  The defendant’s illness is characterised by both “chronic positive and negative symptoms.”[6]  The defendant’s positive symptoms have included disordered thought form, auditory hallucinations, paranoia and persecutory beliefs, including beliefs about his parents and hospital staff.  The defendant’s negative symptoms have included amotivation, severely impaired self-care behaviours and neglect of his disability.[7]

   [6]     Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 2.

   [7]     Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 2.

3. Although the defendant is guarded in reporting his positive symptoms, CCU staff frequently observe him responding to internal stimuli. The defendant’s treating team report more success in treating his positive symptoms than his negative symptoms, which have been a “particularly debilitating aspect of his illness.”[8]  The defendant has been prescribed a multitude of oral and depot antipsychotics (including risperidone, olanzapine, amisulpride, flupenthixol depot, zuclopenthixol depot, risperidone depot and clozapine), with “mixed results.”[9]

   [8]     Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 2.

   [9]     Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, pages 2-3.

4. The defendant’s illness has been complicated by his chronic substance abuse and poor compliance with medication.  Although the defendant had a “good treatment response” to clozapine, he was anxious about its potential side effects and was not compliant with his treatment regime. The defendant has also received electro-convulsive therapy, to “good effect”.[10]

   [10]    Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 3.

5. In November 2012, the defendant was placed on an Involuntary Treatment Order (ITO).  The ITO was made after the defendant fled a CCU, accusing the CCU staff of having ulterior motives and alleging that they were holding him captive.  During that incident, the defendant described having auditory hallucinations which told him that the CCU was harbouring criminals and its staff could not be trusted.

Criminal history

1. The defendant has no Queensland criminal history as a child, and a limited Queensland criminal history as an adult.  The defendant was charged with a breach of order, allegedly committed on 10 March 2008, and contravening a direction or requirement, allegedly committed on 19 March 2008, but on 4 February 2010, no evidence was offered in relation to each of those charges.  The defendant was charged with a failure to appear in accordance with undertaking, allegedly committed on 3 September 2009, but that charge was struck out on 17 November 2009. 

2. The defendant has a limited New South Wales criminal history as a child and as an adult.  As a child, the defendant was convicted of driving a vehicle with a low-range PCA, committed on 29 May 1999, for which he was fined and disqualified from driving for a three month period.  As an adult, the defendant was convicted of driving a vehicle with a mid-range PCA, committed on 17 December 2003, for which he was fined and disqualified from driving for a six month period.

Index offence

1. In the early morning of 25 December 2012, the defendant fell over and sustained a laceration to his chin.  The defendant was taken to the Royal Brisbane Hospital (RBH) by ambulance and was attended to in the Emergency Department.  The defendant did not wait to consult with a plastic surgeon; he returned to the CCU himself.  The index offence is alleged to have occurred while arrangements were being made for the defendant to return to the Emergency Department.

2. The complainant, a nurse at the CCU, states that the defendant entered the reception area of the CCU and demanded cigarettes.  The complainant responded that he did not have any cigarettes but he could get some.  When the complainant turned to walk away, the defendant struck him in the face.  The complainant apparently fell to the ground and lost consciousness for a short period of time. 

3. When the complainant regained consciousness, he felt immediate pain in his face, shoulders and ribs.  The defendant was standing over him in a fighting stance with clenched fists.  The complainant used his feet to kick at the defendant and called out for help.  Other staff in the reception area heard the complainant’s calls for help and arrived within seconds.  Those staff restrained the defendant and administered first aid to the complainant. 

4. The defendant was assessed in the Unit by an on-call psychiatrist the following day. That psychiatrist, Dr Vinit Sawhney, recorded that a “recent aggressive outburst by [the defendant] appears to be a function of his personality issues, low frustration tolerance or impulsivity, rather than his psychotic illness.”[11]

   [11]    T.1-29/40-43.

5. On 22 July 2014, the defendant attended the Hendra Police Station in relation to the incident on 25 December 2013.  The defendant declined to be interviewed by police, but stated that he “just lost control” after the complainant refused his request for cigarettes.[12]

   [12]    Exhibit 1: Queensland Police Service Court Brief (QP9), page 2.

Reporting psychiatrists

1. Dr Braun was the defendant’s treating psychiatrist as at the date of the index offence.  Dr Braun interviewed the defendant on 17 December 2013, at the CCU, for an unspecified period. Dr Braun produced a report dated 19 December 2013.  Dr Braun described the defendant as “super obese”, “mildly dishevelled” and having “uncombed hair”.[13]  The defendant’s mood was euthymic, but his affect was blunted.  Dr Braun could not detect any ongoing delusions or perceptual disturbance.

   [13]    Exhibit 1: Report of Dr Anastasia Braun dated 19 December 2013, page 5.

2. In relation to the index offence, Dr Braun observed the defendant was described by the CCU staff as having had a clinical deterioration in his mental state over the two days preceding her interview with him.   For instance, the defendant had refused to return to the RBH Emergency Department because he “had to write letters,”[14] but could not elaborate on what he meant by this statement.

   [14]    Exhibit 1: Report of Dr Anastasia Braun dated 19 December 2013, page 1.

3. Dr Braun opined that the defendant has a mental illness, that is, treatment-resistant schizophrenia.  At the time of the index offence, that mental illness deprived the defendant of the capacity to know he ought not do the act.  Dr Braun considered that the defendant’s mental illness rendered him incapable of thinking rationally about whether his actions were right or wrong.

4. Dr Gray interviewed the defendant on 24 April 2014 for a period of about 90 minutes.  Dr Gray also interviewed the defendant’s occupational therapist.  Dr Gray produced a report dated 21 May 2015.  Like Dr Braun, Dr Gray characterised the defendant’s presentation as “obese, dishevelled and malodorous.”[15]  The defendant was quite sleepy and fell asleep on a number of occasions during the interview. 

   [15]    Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 5.

5. Dr Gray opined that the defendant’s mood was euthymic, but his affect was quite blunted and, at times, inappropriate.  For Dr Gray, “the most striking phenomenon was relative poverty of content of thought.”[16]  However, there was no obvious delusional phenomena of thought, and the defendant was not having auditory hallucinations (although there was evidence of this in the past).

   [16]    Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 5.

6. After Dr Gray requested that the defendant elaborate on the context of the index offence, he reported that he woke up that day (which was Christmas Day), but then passed out, falling and hitting his lip on a table.  When the defendant regained consciousness, he went to the administration block of the CCU, because he “couldn’t stop the bleeding.”[17]  Although the defendant was “hanging out” for a cigarette, the injury to his lip required that he be sent to the RBH Emergency Department. 

   [17]    Exhibit 3: Report of Dr Curt Gray dated 21 May 2015, page 2.

7. When the defendant returned to the CCU, he was desirous of both food and a cigarette.  The defendant asked a nurse for a cigarette, and when the nurse responded that he would have to wait, the defendant became angry; he felt that the nurse could have been more generous given that it was Christmas Day.  The defendant described pushing, hitting and “rucking” the nurse.  Almost immediately on injuring the nurse, the defendant thought “oh no”, and realised he should not have been aggressive. [18] 

   [18]    Exhibit 3: Report of Dr Curt Gray dated 21 May 2015, page 3.

8. Although the defendant said he was thinking “why can’t you [the nurse] give me one cigarette … it’s Christmas”, and “he was trying to punish me for no reason”, Dr Gray opined this was bound up in the defendant’s notions of fairness, rather than any auditory hallucinations or other psychotic phenomena.

9. Dr Gray opined that, generally, while the defendant:

   “is a person with a relatively low frustration tolerance to perceived criticism, and whilst his chronic schizophrenia would certainly have contributed to this, it would not have always deprived him of the capacity to know that what he was doing was wrong.  He may well have had some difficulty controlling his actions, but I think this would have been in the realm of impulsivity and poor frustration tolerance rather than a true deprivation of the capacity to know and understand the nature of his actions, or to control them.”[19]

   [19]    Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 8.

10. In relation to the day of the index offence specifically, Dr Gray opined:

    “the history available … suggests that [the defendant] was probably no more psychotic than usual at the time in that his frustration towards [the complainant] arose primarily as a result of high levels of frustration and a low frustration tolerance about perceptions of fairness pertaining to the provision of both cigarettes and food.”[20]

    [20]    Exhibit 3: Report of Dr Curtis Gray dated 21 May 2015, page 8.

11. Dr Gray noted that the defendant’s mental state could not have been particularly severe, because he was not kept in the acute unit for more than three or four days after the incident, which suggests he was either reasonably settled upon arrival or settled very quickly. On balance, Dr Gray opined that the defendant was not of unsound mind as at the date of the index offence.

12. Dr Jankovic, in a report dated 29 October 2015, opined that the defendant’s current mental state is pleasant, cooperative and “stable”.[21]  The defendant presents as euthymic or mildly dysphoric, but forms reasonable rapport with staff.  The defendant’s thought content is appropriate to context and conversation.  CCU staff still intermittently observe the defendant responding to internal stimuli, but he continues to deny having auditory hallucinations or perceptual disturbances.

    [21]    Exhibit 6: Report of Dr Dubravka Jankovic dated 29 October 2015, page 2.

Evidence

1. In evidence, Dr Gray characterised the defendant as, on the day of the index offence, “having a very bad day.  He’d had a fall. He’d sustained a laceration.  He’d had to be taken to the Emergency Department.  And he was … hanging out for a cigarette when he approached the nurse at the CCU, and that wasn’t forthcoming … that sort of overwhelmed his frustration tolerance at the time.”[22] 

   [22]    T.1-3/44-47;T.1-4/1-2.

2. Dr Gray emphasised that on assessing the defendant, there was no convincing history of his behaviour being driven by psychotic phenomena, such as delusions or hallucinations.  While Dr Gray conceded that the defendant had a low frustration tolerance, and that this may be connected to the defendant’s mental illness, the defendant was not deprived of any of the relevant capacities.  The defendant “had had enough, and he lashed out.”[23]  In support of that conclusion, Dr Gray cited the defendant’s remorse; both his thinking “oh no, I shouldn’t have done that” to himself immediately after the index offence, and later saying that the nurse didn’t deserve what had happened.[24]

   [23]    T.1-4/46-47.

   [24]    T.1-4/41-13.

3. In evidence, Dr Braun emphasised the defendant’s past history of aggression and violence.  Dr Braun drew the Court’s attention to the defendant’s decline in self-care behaviours and increase in paranoia and aggression in the days preceding the offence.  Dr Braun also observed that the defendant had a prolonged QTc interval on the day of the index offence, such that his risk of severe heart arrhythmia was higher during this period.

4. Dr Braun did not think the defendant was psychotic at the time of the index offence, but he was highly thought disorganised:

   “I think that that particular day … it was more about [the defendant’s] disorganised thinking and unclear thinking.  I believe that that then was driving him at that stage, rather than purely being psychotic or purely being delusional about that particular staff member.  I think it’s more thought disorganisation which contributed to his impulsive acts on that day.”[25]

   [25]    T.1-26/29-34.

5. Dr Braun disagreed with Dr Sawhney’s opinion as to the relevance of the defendant’s mental illness to the commission of the index offence.  Even though Dr Sawhney had seen the defendant shortly after the index offence, and she had not, Dr Braun opined that the defendant’s guardedness and the difficulty in eliciting information from him about any symptoms he was experiencing, meant little weight could be given to that assessment.  Dr Braun accorded particular weight to his mother’s report that the defendant was deteriorating shortly prior to the index offence.

Submissions

1. Counsel for the defendant submitted that the Court would find the defendant was of unsound mind at the time of the index offence. The defendant was deprived of the capacity to know he ought not do the act.  One feature of the defendant’s mental illness was that he did have persecutory ideas about CCU staff, and he did not want to return to the RBH Emergency Department.  The defendant also had a series of behaviours in the weeks and even months preceding the incident which indicated a heightened underlying irritability and anger as a manifestation of his illness. 

2. In Counsel’s submission, the defendant’s behaviours indicate he was responding to internal feelings and thoughts which were informed by his illness.  The defendant’s subsequent account of events, and his statement that he was reacting out of anger might be a rationalisation of his actions, rather than an accurate indication of the motivation for his behaviour, because there has been an improvement in his mental state since the date of the index offence.

1. Counsel for the Director of Public Prosecutions submitted the Court should prefer the opinion of Dr Gray.  Experts rely on the quality of the information they receive, and Dr Braun’s report made it clear she could not elicit an account, let alone a coherent account of the events, whereas Doctors Gray and Sawhney could.  Counsel noted that Dr Sawhney’s opinion was provided closer to the index offence, and, in most respects, coincided with that of Dr Gray.

2. Counsel for the Director of Mental Health submitted that the issue was whether there was a deprivation or an impairment of the defendant’s relevant capacities.  The differences between the opinions of Doctors Braun and Gray came down to the fact that one opinion was cross-sectional and the other was longitudinal.  The question was whether, on the date of the index offence, the defendant’s mental illness was severe enough to explain the behaviour.  That question was a question for the assisting psychiatrists.

Assisting psychiatrists

1. Dr Varghese described this matter as both “quite a complex case” and “a marginal case.”[26]  Dr Varghese opined there was no doubt the defendant had severe schizophrenia, with some quite marked negative symptoms and, at times, positive symptoms of the illness.  Further, the evidence indicated a recent deterioration in the defendant’s function, as noted by Doctors Braun and Sawhney, which indicated a deterioration in his underlying disorganisation thought and behaviour. 

   [26] T.1-39/28-29.

2. While one could infer from that that there is an underlying psychosis giving rise to the deterioration such that could lead to unsoundness,   Dr Varghese opined the inference that this would lead to deprivation, as opposed to impairment, is difficult to defend.  Dr Varghese recommended the opinion of Dr Gray be preferred over that of Dr Braun. 

3. Dr Varghese advised “the most powerful argument against deprivation of capacity is the consultant report of the next day, on Boxing Day … the doctor has paid particular attention to the event … trying to seek an explanation, and comes to the conclusion that … this was not driven primarily by psychotic factors.”[27]  Significantly, the defendant had never given, even to the treating psychiatrist, an account that suggested his behaviour was psychotically driven.

   [27] T.1-39/39-47.

4. Dr Reddan agreed with Dr Varghese’s opinion.  Dr Reddan advised that the defendant had a severe mental illness, namely schizophrenia, with prominent negative symptoms.  The account the defendant gave to Doctors Sawhney and Gray was consistent with the account given by the complainant.  Dr Reddan advised: “we have no evidence … that [the defendant] had any specific paranoid ideas about the victim.  [The defendant] had some, at times, persecutory thinking about staff, not all of which was completely irrational.  ....  [Although the defendant’s] frustrations were mounting … he had control of himself most of the time.  It was like the little incident with the cigarettes was the tipping point.” 

5. Dr Reddan considered “Dr Braun’s comments about his thought disorganisation” relevant, but could not “see how they would lead to him assaulting someone, unless it led to him completely misinterpreting a situation”, and there was “no evidence of that.”[28]  Dr Reddan recommended the opinion of Dr Gray be preferred over that of Dr Braun.

   [28] T.1-40/35-41.

Discussion

1. There is no doubt the defendant had, at the time of the index offence, a state of mental disease or natural mental infirmity as required by the Mental Health Act 2000 (Qld). The defendant was suffering from chronic treatment-resistant schizophrenia. The difference between the evidence of Doctors Gray and Braun was as to whether the defendant’s illness deprived, or merely impaired, him of at least one of the relevant capacities. Dr Gray considered the defendant may have been impaired, but was not deprived of any of the relevant capacities as at the date of the offence, whereas Dr Braun considered the defendant to have been deprived of the capacity to know that he ought not do the act.

2. I prefer and accept the opinion of Dr Gray.  Dr Gray’s characterisation of the defendant’s behaviour, as motivated by his irritability, frustration and anger, is consistent with the account of the complainant and of the defendant himself.  The defendant was having what Dr Gray characterised as a “bad day”.  As a result, the defendant may have been more irritable, frustrated and angry on the day of the index offence.  However, the defendant does not report being psychotic and there is no evidence he was psychotic on that day.  Further, when the defendant was assessed by a psychiatrist the day after the index offence, specifically to ascertain the motivation for the offence, there was no evidence of psychosis.

3. While the defendant may have been experiencing thought disorganisation on the day of the index offence, his thought disorganisation was not sufficient to deprive him of any of the relevant capacities.  The defendant had the capacity to understand and control his actions, and his immediate and post-incident remorse are indicative of a capacity to know he ought not have done the act.  The defendant was not of unsound mind at the time of the index offence.

4. This conclusion is consistent with the advice of both assisting psychiatrists.  I found that advice particularly helpful when assessing the opinions of Doctors Gray and Braun.

5. I am satisfied the defendant is fit for trial.  

Orders

1. I order:

   1.At the time of the alleged offence, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld).

   2.The defendant is fit for trial.

   3.The proceedings against the defendant are to proceed according to law.

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