Re MKD

[2010] QMHC 30

MENTAL HEALTH COURT

CITATION:

Re MKD  [2010] QMHC 030

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

MKD
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by election

PROCEEDING NO:

0196/10

DELIVERED ON:

3 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDERS:

1. The decision of the Mental Health Review Tribunal of 17 June 2010 is confirmed.

2.   The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND

PROCEDURE – QUEENSLAND – where the appellant appeals an involuntary treatment order of the Mental Health Review Tribunal (MHRT) – where evidence the appellant suffers schizophrenia – whether appeal should be allowed or dismissed.

COUNSEL:

J Briggs appeared on behalf of the appellant

J Tate for the Director of Mental Health

SOLICITORS:

Legal Aid for the appellant

Crown Law for the Director of Mental Health

Ann LYONS J:

1. This is an appeal by MKD against a decision of the Mental Health Review Tribunal of 17 June 2010.  The appellant’s appeal was filed on 13 August 2010. The appellant was represented at the appeal by Mr Briggs from the Legal Aid Office.  Mr Briggs outlined that the basis for the appeal is twofold.

(i)         The appellant does not believe he has a mental illness and

(ii)       The appellant believes that the decision of the Tribunal was based on false reports.

1. An appeal to this Court is an appeal by way of rehearing and the court accordingly needs to make a decision based on the material before the Tribunal as well as any other information that has subsequently become available.

1. Pursuant to s 325 of the Mental Health Act 2000 (Qld) (the Act), in deciding the appeal the Mental Health Court may confirm or set aside the decision appealed against. If the Mental Health Court sets aside the decision then the court may make a decision the Tribunal could have made on the review of the application and the decision is taken to be that of the Tribunal.

The material before the Mental Health Review Tribunal

1. The material before the Mental Health Review Tribunal was the involuntary treatment order dated 14 May 2010, as well as the clinical report dated 15 June 2010. The reasons of the Tribunal indicated that the appellant had a 17 year history of contact with the Mental Health Service, having a diagnosis of a psychotic disorder which was schizophrenia. The Tribunal was satisfied that the appellant’s mental illness required immediate treatment as his current symptoms will not resolve without pharmacological or other intervention from his treating team.

1. The Mental Health Review Tribunal noted that the appellant had been brought into hospital by police after problems were reported at his mother’s residence. The appellant was extremely disturbed on admission. He believed that he had a document which meant he could not be held under the Act and it was clear he was fixated on being released and was “irritable paranoid and hostile”. The appellant gave evidence to the Tribunal that he had been done a grave injustice and the hearing was an example of this. He also voiced his concerns about Queensland Health. He said he was concerned about people talking about him on the bus, and his father being a priest. He also discussed his ideas, making money and stated that he had invented a new type of fishing lure and a new brand of Vodka.

1. The evidence of the treating team given at the Mental Health Review Tribunal hearing indicated that the appellant remained insightless into his illness and he needed treatment but was reluctant to accept treatment and was accordingly at risk with non-compliance with treatment.

1. Dr Padhiar indicated that the appellant had impaired capacity to consent to his own treatment and that he had been recently living in the yard at his elderly mother’s and using the yard as a toilet as well as disturbing the neighbours. Accordingly, at the time of the hearing the Tribunal was satisfied that the appellant’s mental illness required immediate treatment and that he was currently receiving that treatment as an inpatient in the acute ward of the Gold Coast Hospital. The Tribunal was also satisfied there was a clear risk of the appellant’s serious deterioration of his mental and physical health if he was not required to receive treatment. The Tribunal also considered there was no less restrictive way of ensuring he received the appropriate treatment.

1. The Tribunal acknowledged that it is clear that the appellant does not agree with the diagnosis of schizophrenia. He had also indicated to the Tribunal that his family are cruel to him and that he had been homeless.  

The appellant’s evidence to the Court

1. The appellant also gave evidence at the hearing of the appeal and gave a history of having been previously employed as a psychiatric nurse.  He told the Court that he considered that Dr Waugh, his current treating psychiatrist, relied too heavily on his past history and not sufficiently on his current circumstances. He stated that Dr Waugh was ‘too relaxed’ and had only spent 10 or 15 minutes with him.  He considered that he did not focus on the real issues but rather was concerned with a ‘longitudinal analysis’. He also considered that Dr Waugh placed too much emphasis on the fact he had been charged with stalking in the past when it was clear he said that the matter had never gone to court and he had not been found guilty of stalking.

1. The appellant stated he was currently living at a boarding house at Redcliffe and was on Newstart Allowance.  He stated he now has a good relationship with his mother and has seen her twice in the last two months.  Whilst he had casual employment from time to time he stated that he was not currently employed.  He had not had full time employment since 1995.  He states that his life at the moment is “like treading water” as he spends most of his time going to appointments with his treating team or applying for jobs.  He also considers his applications for a blue card have been unfairly rejected.

1. He indicated to the Court that after he came off his previous forensic order he had travelled overseas for a number of years.  The appellant outlined to the Court the circumstances surrounding the 7 -10 days he had spent living in his mother’s backyard and stated that he was homeless on that occasion and had no other options.  He also described the incident on the bus and stated that he was travelling on the bus with his mother and a person got on and was talking about paedophiles and priests.  His father had been a priest and he was upset about this comment.  He also recalled that this man had done the same thing previously.  The appellant also outlined the circumstances in relation to his altercation with the police officer.  He had been speaking to the officer at the Police Station about his difficulty getting employment and had subsequently seen that officer go over the road to an automatic teller machine.  He considered that that was a clear reference to him and his inability to get work.  He said that the police officer “was having a go at him about money”.  He said he yelled abuse at the officer because the ATM means money and he obviously did not have any money.

Dr Waugh’s evidence

1. In a report to the Court dated 25 August 2010, Dr Waugh indicated that the appellant was referred to the Redcliffe Caboolture Mental Health Service after being discharged from the Gold Coast Hospital on 18 June 2010 and that he was on a community category of an involuntary treatment order. The RepOrt indicated that The appellant initially declined follow up with the Service and was returned to the Gold Coast Hospital from 29 June 2010 to 12 July 2010. He has subsequently been compliant with follow up and treatment. Dr Waugh indicated that the appellant essentially challenges the accuracy of the information contained in the reports furnished to the Mental Health Review Tribunal. He indicated that the appellant is currently facing charges for public nuisance but that those charges had not yet been referred to the Mental Health Court.

1. Dr Waugh gave evidence at the hearing and stated he had interviewed the appellant on one occasion only and that the appointment had taken some 45 to 50 minutes.  Dr Waugh indicated that there was clear evidence that the appellant has a mental illness, namely schizophrenia. He noted that there is a long history of persecutory delusions, particularly regarding the police and Queensland Health. Dr Waugh also considered the Gold Coast Mental Health Service report and noted that the appellant has been acutely psychotic as little as three months ago.  He considers that he remains irritable and suspicious. Dr Waugh considered that an analysis of the appellant’s collateral history as well as his current circumstances shows consistent themes involving persecutory delusions. 

1. Dr Waugh also indicated that the appellant responds well to anti-psychotic medication but relapses when untreated. He also stated that he does continue to show residual signs of psychotic thinking processes and is at high risk of relapse if medication is not continued. Dr Waugh advised that the medication and treatment are available at the Redcliffe Caboolture Mental Health Service and that the appellant is currently being treated as an outpatient.

1. Dr Waugh considered that there are risk factors as the appellant is reported to have been verbally hostile previously to health staff and police and he has also previously been charged with wilful damage of a motor vehicle, unlawful stalking and dangerous operation of a motor vehicle. It would appear that the appellant has been previously managed under a forensic order. Dr Waugh considers that it is appropriate that the appellant continue under an involuntary treatment order as a community patient. He also considered that there was no less restrictive way of ensuring that the appellant receives treatment and he does not consider that he has the ability to consent as he has no insight into the fact he has a mental illness. The appellant has indicated to Dr Waugh that he would not take any medication if he was a voluntary patient.

1. Dr Waugh acknowledged in cross examination that the appellant was clearly very intelligent and that he had only seen him on one occasion.  He also agreed that he was not delusional at the time he saw him but considered that his reporting of the interactions on the bus and his actions with police showed residual symptoms.  Dr Waugh considered that the appellant’s present behaviours were clearly due to his illness and that the best way for him to come off an involuntary treatment order (ITO) was to receive treatment.  He considered that the appellant continued to meet the criteria for an ITO.

The views of the Assisting Psychiatrists

1. Dr Varghese agreed with the appellant’s submission that it was important that a diagnosis not be based solely on a past history particularly when there was a prospect of recovery.  He stated that it was indeed important and that there was a need to make sure that current circumstances were also taken into account.  Dr Varghese agreed with Dr Waugh that the appellant presents very well and is clearly very intelligent and articulate. Dr Varghese however agrees with Dr Waugh in relation to his diagnosis and considers that the appellant is still displaying residual symptoms and considers that he “sees significance in things others would find ordinary”.  Dr Varghese considered that the requirements for an ITO had been fulfilled.

1. Dr McVie also considered that the history supports a diagnosis of schizophrenia.  She also stated that it would be helpful for the appellant to obtain an independent report.  Dr Mc Vie was satisfied that the treatment criteria have been met and that a Forensic Order was required.

Conclusion

1. I consider that the appellant has a diagnosis of schizophrenia which requires immediate and continuing treatment.  He meets the criteria in s 14 of the Act for the continuation of an involuntary treatment order.   

1. It would seem clear that on the basis of that material and on the basis of the material which was before the Mental Health Review Tribunal that the appellant has continued to display impaired insight into his illness and the long term need for treatment.  It would seem that he has a long history of persecutory symptoms. He also continues to consider that he does not have a mental illness.  I am satisfied that there is no less restrictive way of ensuring The appellant receives treatment.

1. I agree with the conclusion of the Mental Health Review Tribunal that because of his lack of insight the appellant lacks the capacity to consent to his treatment. I also consider that he is at risk of mental state deterioration as well as aggression towards others and harm to himself if he does not receive treatment.

1. The decision of the Mental Health Review Tribunal of 17 June 2010 is therefore confirmed.

1. The appeal is dismissed.