Re McElligott

[2006] QMHC 8

MENTAL HEALTH COURT

CITATION:

Re McElligott [2006] QMHC 008

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF IAN JOHN McELLIGOTT

PROCEEDING: 

No 0271 of 2005

DELIVERED ON:

16 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 and 9 June 2006

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

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

2.   That the defendant be detained as a forensic patient to The Park - Centre for Mental Health Authorised Mental Health Service for involuntary treatment and care.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with four counts of wilful damage – where uncontested evidence that defendant suffered from intellectual disability – whether defendant of unsound mind at the time of the alleged offences – whether forensic order to be made

Mental Health Act 2000 (Qld), s 409, s 495

Re Graham [2005] QMHC 022

COUNSEL:

Mr J Farmer for the defendant
Mr J Tate for the Director of Mental Health
Ms C Kelly for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions (Queensland)

1. PHILIPPIDES J:  Mr McElligott is charged with four counts of wilful damage, two alleged to have occurred on 21 November 2004, a third on 22 November 2004 and a fourth on 30 November 2004.  The matter of the defendant’s mental condition at the time of the offences charged was referred to this Court by the defendant’s legal representative.

1. The hearing proceeded in the absence of the defendant pursuant to s 409 of the Mental Health Act 2000 (Qld). Leave was granted to Mr Healy, Director of Legal Services for Disability Services Queensland and Dr Groves, Director of Mental Health, to appear on the reference.

1. The Court had before it reports by Dr White who has seen the defendant three to four times each year since 2001.  There is also a report by Dr La Vigna of 17 April 2006.  Other material included a report of 6 April 1998 of the Wide Bay Assessment Service, its review report of 10 September 1998, Disability Services Queensland reports of January 2003, 23 March 2006 and 1 June 2006, and the Bay Support Services Group report of 24 March 2006.

1. It is clear that the defendant has an intellectual disability.  The defendant has also been diagnosed with the chromosomal disorder, 47 XYY syndrome.  The clinical evidence of Dr White, and that of the assisting psychiatrists support a finding of unsoundness of mind at the relevant time based on the defendant having a natural mental infirmity with deprivation of capacities.  I note that Dr White’s opinion was that there was no evidence that the defendant suffered from a mental illness.  However, Dr La Vigna in his report suggests that the behaviour problems presented in the defendant may reflect more than an intellectual disability coupled with a chromosomal disorder.  Both his report and the Bay Support Services Group report of 24 March 2006 refer to a number of diagnoses made over the years, including that of Dr Varghese in 1997 and Dr Briggs in 2003 of autism spectrum disorder.  In any event, on the clinical material, it is at least clear that, given his intellectual disabilities, the defendant suffered from a natural mental infirmity at the time of the offences such that he was of unsound mind.

1. That leads to the matter which dominated the evidence and submissions to the court, namely the issue of the defendant’s placement and whether a forensic order is appropriate in the present case.

1. This case highlights the difficulties that exist under the present legislative framework in respect of the appropriate management and care of persons with intellectual disability who exhibit severely challenging and threatening behaviour.  As Dr White states in his report of 7 June 2006, the defendant exhibits extremely challenging behaviours involving unpredictable and chronic violence and remains highly dangerous.  He requires continuous containment amounting to detention. 

1. Over the years the defendant has had a variety of accommodation.  Because of his behavioural issues he was placed in The Villas, a secure accommodation support in Maryborough provided by Disability Services Queensland.  He was also from August 2004 being supported by Bay Support Services Group.  It was planned that he remain there pending the finalisation of plans to build a purpose built home for him in a rural environment close to his family.  However on 17 December 2005, the defendant set fire to his home resulting in its destruction.  As a consequence he was admitted to the Baillie Henderson Psychiatric Hospital in Toowoomba.  However, that accommodation was considered to be inappropriate for the defendant and since 22 December 2005 he has been living at the Basil Stafford Centre at Wacol which is run by Disability Services Queensland.  Currently the defendant is under 24 hour supervision with support staff monitoring him at all times in a contained environment.   

1. On 13 March 2006 the Guardianship and Administration Tribunal gave its decision in respect of an application made before it concerning the powers of the Adult Guardian in the defendant’s case where his actions are monitored and he is kept within a confined environment.  The Tribunal addressed issues as to the restraint that can be imposed in respect of the defendant’s living environment and the extent to which restrictive practices can be permitted.  The Tribunal noted the deficiencies in the Act in respect of the treatment of a person with an intellectual disability as opposed to a mental illness.  These shortcomings have also been referred to by this court in Re Graham [2005] QMHC 022 and other decisions of this Court.

1. The clinical evidence before the Court and the advice of the assisting psychiatrists is that the defendant requires ongoing special management and care and that that management and care extends to the contribution and import from a psychiatrist in relation to his medication.  In this regard I observe that Dr White agreed with the view expressed by Dr La Vigna in his report as to the role of medications “as part of a comprehensive biopsychosocial plan that is likely to be necessary to effectively support Mr McElligott”.  The clinical evidence indicates that the defendant’s treatment needs are best met at the Basil Stafford Centre where he currently resides and where he receives specialised treatment by staff from Disability Services Queensland with whom he is familiar. 

1. It was initially indicated at the hearing of the reference that the making of a forensic order would result in the defendant being detained to the high security psychiatric unit of The Park - Centre for Mental Health Authorised Mental Health Service (“The Park”) that being the only place where the defendant could be accommodated. However, all the clinical evidence is to the effect that such detention would be highly detrimental to the defendant with very adverse consequences for his treatment and care and would place him and others at risk. During the course of the hearing the Court was informed that the Basil Stafford Centre was to be declared part of the facilities of The Park. On 13 June 2006, a declaration was indeed made under s 495 of the Act to include units 4 and 5 of the facilities at the Basil Stafford Centre within The Park with gazettal following.

1. In those circumstances and having regard to the clinical evidence including the advice given by the assisting psychiatrists, I consider that it appropriate that a forensic order be made that the defendant be detained at The Park so as to provide for his treatment needs and to ensure the protection of the community.  A consequence of the making of a forensic order is that the defendant will also receive the protections and scrutiny provided for by the Act.

1. Accordingly, I order that the defendant be detained as a forensic patient to The Park - Centre for Mental Health Authorised Mental Health Service for involuntary treatment and care.

1. As mentioned the present case highlights the difficulties which arise in the management and care of those with intellectual disability who exhibit chronic violent behaviours requiring their containment and detention.  Were it not for the fact that units 4 and 5 of the facilities of the Basil Stafford Centre are now part of The Park so that the defendant can be detained to those facilities, a very grave dilemma would have arisen in respect of the defendant’s placement.  It is appropriate in those circumstances that I direct that a copy of these reasons be provided to the Attorney-General and Minister for Justice and also to the Honourable Bill Carter QC for consideration in the review he is currently conducting into these very issues.  I grant leave to the parties to refer to the transcript of the hearing for the purposes of making submissions to the Carter review.  I also direct that copies of the transcript and reasons be made available to the Public Advocate, the Adult Guardian and Disabilities Services Queensland.