Re MLG

[2004] QMHC 3

MENTAL HEALTH COURT

CITATION:

Re MLG [2004] QMHC 003

PARTIES:

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

PROCEEDING NO:

0131 of 2003

DELIVERED ON:

18 March 2004

DELIVERED AT:

Brisbane

HEARING DATES:

18 March 2004

JUDGE:

Wilson J

ASSISTING PSYCHIATRISTS:

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDERS

1.    That at the time the alleged offences were committed, the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld)

2.    Order that the defendant be detained as a forensic patient at Princess Alexandra Hospital and District Authorised Mental Health Service for involuntary treatment and care;

3.    Approval of limited community treatment to commence immediately on the following conditions:

a)    That she reside at [address] or at an address approved in advance in writing by the authorised psychiatrist;

b)    That she be seen and assessed weekly by a member of the treatment team at the West End Adult Mental Health Service;

c)     That she be seen and assessed at least monthly by a medical member of the treatment team at the West End Adult Mental Health Service;

d)    That she receive specialist psychiatric assessment at least every three months;

e)     That she attend all follow up appointments and inpatient care as required by the authorised psychiatrist;

f)     That she comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;

g)   That she abstain completely from using alcohol and illicit drugs and make herself available and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist, such testing to occur at least every three - five weeks.

h)    That she provide the West End Adult Mental Health Service with a written authority addressed to the Peel Street Clinic in terms approved by the authorised psychiatrist;

i.     to provide the said service with the results of any random drug screens;

ii.    to inform that service immediately of any evidence of her resumption of use of illicit drugs;

iii.   to inform that service immediately if she fails to attend the Peel Street Clinic or discontinues any drug rehabilitation program there

i)     That she not drive a motor vehicle

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant charged with multiple offences including dangerous driving causing death – where defendant has psychotic illness – whether the Court ought to make a forensic order with provision for limited community treatment – where all parties agree that such an order should be made – where court must not make order unless satisfied that the defendant is not an unacceptable risk to herself or others having regard to her mental illness – where defendant has history of drug abuse

COURTS – JURISDICTION – ORDERS – POWERS OF SUPERIOR COURT TO RE-OPEN OR SET ASIDE AFTER ENTRY – MENTAL HEALTH COURT – Mental Health Act 2000 (Qld) – where court is superior court of record – where court process is inquisitorial in nature – where orders have not been perfected – whether the Court can re-open the question of limited community treatment.

Mental Health Act 2000 (Qld), ss 8, 9, 200, 289, 381, 383, 384, 405, schedule 2

Criminal Code 1899 (Qld), s 27

Autodesk Inc v. Dyason (No 2) (1992-93) 176 CLR 300 per Mason CJ at 302, followed
DJL v. Central Authority (2000) 201 CLR 226 per Kirby J at 262-263, applied
Re Harrison’s Share Under a Settlement [1995] Ch 260, referred to
New South Wales Bar Association v Smith (unreported, NSW Court of Appeal, 4 July 1991), referred to
Pittalis v Sherefettin [1986] 1 QB 868, referred to

COUNSEL:

D Shepherd for the defendant
J Tate for the Director of Mental Health
P Rutledge 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

1. WILSON J:  On 16 March 2004 this Court determined a reference into the mental condition of MLG [“the defendant”] relating to a number of offences committed on 14 and 17 September 2001.

1. It found that when the alleged offences were committed she was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 and went on to make a forensic order with provision for limited community treatment. I delivered brief ex tempore reasons at the time.

1. This morning the Court re-opened the question of limited community treatment, and I shall deal in due course with the basis for that re-opening.  I also indicated that I proposed delivering a fuller statement of reasons for the finding of unsoundness of mind.

1. The defendant was charged with the following offences: possession of a dangerous drug (cannabis) and possession of a drug utensil (a pipe) on 14 September 2001; and unlawful use of a motor vehicle, dangerous operation of a motor vehicle causing death, and dangerous operation of a motor vehicle with a circumstance of aggravation on 17 September 2001.

1. The defendant was born on 30 July 1964.  On her account her childhood was marked by physical and sexual abuse.  She has a long history of polydrug abuse from her early teenage years.  At one stage she turned to prostitution to support her drug habit.

1. She is an intelligent woman.  Dr Fama assessed her as being in the above average range of intelligence and I note she has a Bachelor of Arts degree from the University of Queensland. 

1. She has attended a number of drug rehabilitation programs over the years but there were no psychiatric admissions before September 2001.

1. On 14 September 2001, the defendant came to the attention of police when she was found naked in a street at Runcorn.  They were led to a flat where she had stayed overnight.  There they found her handbag which contained a clipseal bag containing green leafy material (cannabis) and a brass pipe. 

1. She was taken to the Princess Alexandra Hospital where she was admitted to the psychiatric ward.  She gave hospital staff a history of polysubstance abuse.  She told them about hearing voices trying to persuade her to stop using drugs.  She said she felt religious at the time she was found naked in the street.  She said she could read others’ thoughts and that ideas from television and radio made her feel on top of the world.  Her mood was elevated.

1. The next day, 15 September, she denied being on methadone.  She was seen posturing, holding her arms up and apparently responding to auditory hallucinations.  She slept fitfully.

1. On 16 September she said she felt much better.  She declined anti-psychotic medication. 

1. On 17 September she seemed settled, but was continuing to hear the voice of God. 

1. While in the Princess Alexandra Hospital she was on 15 minute observations.  A psychiatric registrar made a diagnosis of drug induced psychosis. 

1. On 17 September at about 10.30 a.m. the defendant absconded from the ward. 

1. A hospital storeman had parked a white utility in a car park area near the flammable store at the hospital.  While he was unloading drums he noticed a woman walking beside cars in the car park dressed in light blue jeans and a T-shirt.  He assumed she was a hospital employee.  In fact she was the defendant.  He was in the process of unlocking the door of the flammable store when he heard the noise of the utility door closing and its motor being turned on.  The defendant drove the utility away at high speed, colliding with a fire hydrant as she went.  She drove along Old Cleveland Road at speeds varying between 80 and 180 kilometres per hour.  At one stage she went through a red light. 

1. At a point about two kilometres from the hospital she crossed to the wrong side of the road, and collided violently with a Mitsubishi van, pushing it into another vehicle, a Range Rover.  The results were catastrophic.  The woman driver of the Range Rover was killed.  The driver of the van sustained severe injuries including a closed head injury, leg injuries resulting in the amputation of both legs, and optic nerve damage resulting in the loss of sight in his right eye.

1. On the evidence, I am satisfied that at the time of the offences the defendant was psychotic.  She had delusional thinking, hallucinations and an elevated mood.  She thought she was on a mission and that the car had been given to her by God to effect her transportation to heaven.  She believed there were no rules and that she did not have to steer the vehicle. 

1. The accident happened at about 11.40 a.m.  Blood tests were taken at 1.13 p.m.  They revealed therapeutic levels of prescribed medications.  The blood was tested for cannabis, amphetamines and alcohol, but none of those substances was detected. 

1. The defendant was herself injured in the accident.  She was admitted first to the Mater Hospital and subsequently transferred to the Princess Alexandra Hospital.  She resumed psychiatric treatment and was not discharged from the Princess Alexandra psychiatric unit until 28 December 2001, more than three months after the accident.  She was discharged to live in the community with follow-up at the West End Adult Mental Health Clinic by Dr Dark, a specialist psychiatrist. 

1. The diagnosis at the Princess Alexandra Hospital was schizophrenic illness. The defendant was examined by two consultant psychiatrists in relation to these proceedings: Dr Peter Fama on 26 March 2003 and Dr Jill Reddan on 26 September 2003. Both doctors provided detailed written reports to the Court and gave oral evidence. Dr Fama considered that she had a schizo-affective disorder as well as multi drug dependence. In his view, she was deprived by the schizo-affective disorder of the capacity to know she ought not do the acts in question. Dr Reddan considered that the diagnosis was probably a drug induced psychosis, although it was possible that the psychosis was schizophrenia or a schizo-affective disorder. In her opinion, the defendant was deprived of all three capacities referred to in section 27 of the Criminal Code.

1. Under the Mental Health Act 2000 "unsound mind" means the state of mental disease or natural mental infirmity described in section 27 of the Criminal Code - that is, a state of mental disease or natural mental infirmity such as to deprive the person of the capacity to understand what he or she is doing or of the capacity to control the person's actions or of the capacity to know that the person ought not do the act or make the omission.  The definition goes on expressly to say that it does not include a state of mind resulting to any extent from intentional intoxication alone or in combination with some other agent at or about the time of the alleged offence. 

1. In this case it is not necessary to resolve whether the defendant had a schizo-affective disorder or a drug induced psychosis.  She was clearly psychotic.  Both disorders are diseases of the mind within the meaning of the legislation.  The analyst's certificate excludes the presence of illicit drugs and alcohol within a short time after the accident.  In short, she was not voluntarily intoxicated at the time of the offences.

1. On this evidence, the defendant was clearly of unsound mind at the time of the alleged offences.  The consequence of this finding is that the criminal charges against her are discontinued. 

1. However, this finding is not the end of this Court's function.  It must consider the seriousness of the offences, her treatment needs and the protection of the community in deciding whether to make a forensic order - that is, an order for her detention as an involuntary patient at an authorised mental health service.  Clearly a forensic order is called for in this case.

1. The Court must then consider whether to approve or order limited community treatment - that is, some form of treatment or rehabilitation in the community.  The Mental Health Act enshrines the principle of the least restrictive form of treatment for the mentally ill. See sections 8 and 9.

1. Under section 289 of the Act there are certain matters of which the Court must be satisfied before approving or ordering any form of limited community treatment. Under subsection (4) it must be satisfied that the patient is not an unacceptable risk to herself or others having regard to her mental illness, and under subsection (6) it must have regard to (a) her mental state and psychiatric history, (b) the offences leading to the making of the forensic order, (c) her social circumstances, and (d) her response to treatment and willingness to continue treatment. As a matter of practice, before ordering or approving any form of limited community treatment, the Court hears submissions on behalf of the defendant, the Director of Public Prosecutions and the Director of Mental Health, and it then seeks the advice of the assisting psychiatrists upon whether limited community treatment is appropriate and, if so, whether terms proposed are appropriate.

1. Since the defendant's discharge from the Princess Alexandra Hospital she has been living in a flat at West End.  When Dr Fama saw her on 26 March 2003 he considered that although she was vulnerable to relapse if she renewed illicit drug use, she was being well managed and there was no need for inpatient care.  He spoke to her briefly on the morning of the hearing and said that so far as he could see from that brief encounter she was in quite good health, attending the clinic, living in the flat and not having any great difficulties. He did not see any reason for her to be placed in hospital.  He qualified his evidence by saying that he was not up to date with her treatment needs and reporting. 

1. When Dr Reddan examined the defendant on 23 September 2003, she considered that she was no longer psychotic.  She did not require hospitalisation.  In her oral evidence, Dr Reddan said that if the clinical situation had not changed, there was no reason for detaining her in hospital and nothing would be added by doing so.  She did express concern that a urine drug screen performed at the time of the examination in September 2003 revealed the presence not only of prescription drugs, but also cannabinoids.

1. In his written report, Dr Fama recorded that at interview the defendant was remorseful and tearful in recounting the car accident and its appalling consequences, saying, "I feel responsible."  Dr Reddan recorded in her report that the defendant had become tearful when describing the death of one of the drivers and the severe injuries sustained by the other.  She had expressed shame and guilt about her conduct. 

1. When the matter was before the Court on 16 March 2004, there was no evidence of any change in the defendant's clinical situation.  The Court was informed by her counsel that she was voluntarily seeing Dr Dark, a psychiatrist at the West End Adult Mental Health Service, regularly until quite recently and that she was now seeing Dr Calvird.  The Court was informed that she was attending on the doctor on a fortnightly basis and that she also was receiving a home visit, apparently from a case worker, once a week.  No report from the West End Adult Mental Health Service was before the Court.  The three counsel supported limited community treatment.  There was discussion of its terms.  There was input from the assisting psychiatrists, particularly in relation to random drug testing.  I approved limited community treatment subject to six conditions.

1. On reflection, I ought not to have done so without insisting upon a more recent report as to her mental condition and compliance with treatment.  The orders made on 16 March 2004 have not been perfected - that is, they have not been translated into formal orders entered into the records of the Court.  The matter was re-listed today at the instigation of the Court so that the Court might receive submissions on its power to re-open the issue of limited community treatment and if it has such power whether it ought to do so.

1. In fact, the three counsel informed the Court that there was no issue as to its jurisdiction to re-open the question of limited community treatment.  Nevertheless, for the sake of the record, I think I should record why I am of the opinion that the Court clearly does have such jurisdiction. 

1. The Mental Health Court was created by the Mental Health Act 2000. It is a superior Court of record: section 381. Sections 383 and 384 provide -

"383 Jurisdiction.

(1) The Mental Health Court has the following jurisdiction -

a)deciding appeals against decisions of the Tribunal;

b)deciding references of the mental condition of persons;

c)investigating the detention of patients in authorised mental health services;

(2) In exercising its jurisdiction, the court –

a)must inquire into the matter before it; and

b)may inform itself of any matter relating to the inquiry in any way it considers appropriate.

(3) In a proceeding, the court may give directions about the hearing of a matter.

(4) The court's jurisdiction is limited, by implication, by a provision of this or another Act.

384 Powers

(1) The Mental Health Court may do all things necessary or convenient to be done for, or in relation to, exercising its jurisdiction.

(2) Without limiting subsection (1), the court has the powers conferred on it by this Act."

1. I am satisfied that the power to re-open an order or approval for limited community treatment, where the order has not been perfected, is to be implied from the legislation. 

1. In a proceeding before the Court, no party bears the onus of proof, and a matter must be decided on the balance of probabilities: section 405. Thus, the court process is inquisitorial rather than adversarial in nature. Relevantly, the Court is charged with determining questions of soundness of mind and fitness for trial, and further, in cases of unsoundness or unfitness, deciding whether to make orders for the detention of persons to authorised mental health services with or without some form of limited community treatment. It must not order or approve limited community treatment unless satisfied that the person is not an unacceptable risk to herself or others, having regard to her mental illness.

1. A power to re-open a final order which has not been perfected exists in relation to courts whose process is adversarial in nature.  In DJL v. Central Authority (2000) 201 CLR 226, Kirby J said at paragraphs 90-91:

"[90] The law, for very good reason, places a high store on the finality of court judgments and orders.  There would be little point in having courts to resolve disputes between parties according to law with settled remedies of judicial review and appeal, and within a hierarchical judicial system, if no ultimate finality could be reached.  The judicial system would be discredited if 'final' orders were revealed as provisional or always subject to reconsideration and collateral challenge thus compounding costs, delays and the anxiety of submitting disputes to independent judicial determination.  People caught up in litigation would not be able to order their affairs with certainty following its outcome.  They could be subjected to repeated attempts by their opponents to engage them in fresh argumentation on issues they thought had been decided.  Litigants with long purses, uncompromising certainty of their rectitude or spiteful desire to win although they lose (by constantly running up the costs of re-openings) would defeat one of the chief objectives of any civilised legal system: the bringing of a litigated contest to an end.

[91]  On the other hand, because courts comprise decision-makers who are fallible human beings, not machines, occasionally errors and oversights will occur which can clearly be demonstrated and which produce a result which would be 'manifestly unjust if the judgment were allowed to stand'.  Where the earlier decision has been announced but not yet 'perfected' (in the sense of translated into a formal order entered in the records of the court) it is usually possible to repair the mistake and prevent the injustice by restraining (or securing agreement to withhold) the perfection of the order in question; relisting the matter before the Court concerned; and attempting to persuade it to change its opinion and the orders which follow from it.  In the course of judicial life it can happen that a party, receiving reasons for a decision pronounced in open court, notices a fundamental mistake, quickly calls it to the attention of the judge or judges involved, and before perfection of the orders, gains correction and even reversal of the previously announced decision.  This has happened to most judges."

1. In my respectful opinion, what his Honour said applies a fortiori to a Court whose proceedings are inquisitorial in nature. 

1. The power is one to be exercised with caution.  Ultimately, the test is whether the interests of justice require a re-opening.  In Autodesk Inc v. Dyason (No 2) (1992-93) 176 CLR 300 at 302, Mason CJ gave the following examples of the recall of orders pronounced but not yet perfected: InRe Harrison's Share under a Settlement [1955] Ch 260 where orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which orders had been made; New South Wales Bar Association v Smith (unreported; New South Wales Court of Appeal; 4 July 1991) where the Court reconsidered orders previously made in view of argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings; and Pittalis v Sherefettin [1986] 1 QB 868, where a Judge recalled orders the day after they were made upon determining that he had erred in a material matter in his approach to the case.

1. I am satisfied that this Court does have power to reopen the issue of limited community treatment and that it was proper for it to do so.

1. Yesterday afternoon the defendant attended the West End Adult Mental Health Service where she was examined by Dr Dark. A random drug screen was performed but the results of that are not yet available.  Dr Dark provided the Court with a written report.  She also gave oral evidence by telephone.  She said this in her written report:

"[The defendant] has been in the continuous care of the Princess Alexandra Mental Health Service since September 2001.

She is currently managed by our Mobile Intensive Support and Treatment service.  This service provides assertive case management with at least weekly contact.

[The defendant] is currently seen fortnightly by Dr Calvird, a senior Psychiatric Registrar.

Issues arising for [the defendant] have included:

Grief and depression secondary to her role in the accident;

Obsessive compulsive symptoms (OCD);

Pain management secondary to her permanent injuries sustained in the accident;
Memory problems secondary to her head injury leading to problems following through with rehabilitation.

Her psychotic symptoms are well maintained on Risperidone 3mg.

In addition, she is on Citalopram 60mg for depression and OCD.

She has been safely managed in the community since 2001.

Hospitalisation is not clinically required and is likely to be detrimental to her mental state if enforced for non-clinical reasons.
The intensive follow-up means that any change in mental state is quickly identified.

[The defendant] was seen on 17/03/2004.  A random drug screen was performed."

1. In addition to attending the West End Adult Mental Health Service, the defendant has been attending the Peel Street Clinic which is a drug and alcohol service provided by Queensland Health.  A short report by E. Byrne, a clinical nurse, dated 17 March 2004 was before the Court.  It provided:

"This client is currently registered on Methadone with this clinic since 29 December 2001 apart from a brief period during which she switched from the Methadone to the Buprenorphine Program.  She has attended this clinic some 17 times since last July and has seen a Medical Officer on six of those occasions."

1. According to Dr Dark's oral evidence, the defendant's psychotic illness is independent of illicit drugs, although it is made worse by illicit drugs.  There is also a mood component and recently there have been obsessive compulsive disorder symptoms.  In Dr Dark's professional opinion, the defendant is not a risk to the community.  She has been seeing the defendant since late 2001 and has not observed any change in her mental state to indicate a resumption of illicit drug use.  She was not aware of a drug screen arranged by Dr Reddan in September 2003 which revealed the presence of marijuana.

1. Dr Dark said that the defendant has been through some difficult periods in her treatment and rehabilitation.  The West End Adult Mental Health Clinic has been particularly concerned to look out for the use of amphetamines, although she acknowledged that marijuana is also a concern for someone with a psychotic illness.

1. In all of the circumstances, I am comfortably satisfied that the defendant is being well managed in the community and that she is not an unacceptable risk to herself or others by reason of her mental illness while she maintains her present state. 

1. When the matter was before the Court on 16 March 2004 I approved limited community treatment subject to six conditions.  Events have overtaken those conditions to a certain extent.  The Court has today had considerable discussion with counsel as to what are presently the appropriate terms of limited community treatment.  It has received the advice and input of the assisting psychiatrists (which is of course recorded in the transcript).  I am going to vacate the approval of limited community treatment which I made on 16 March 2004 and, in lieu of that, to substitute approval of limited community treatment to commence immediately on the following conditions:

1.    That she reside at [address] or at an address approved in advance in writing by the authorised psychiatrist;

2.    That she be seen and assessed weekly by a member of the treatment team at the West End Adult Mental Health Service;

3.    That she be seen and assessed at least monthly by a medical member of the treatment team at the West End Adult Mental Health Service;

4.    That she receive specialist psychiatric assessment at least every three months;

5.    That she attend all follow up appointments and inpatient care as required by the authorised psychiatrist;

6.    That she comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;

7.    That she abstain completely from using alcohol and illicit drugs and make herself available and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist, such testing to occur at least every three - five weeks;

8.    That she provide the West End Adult Mental Health Service with a written authority addressed to the Peel Street Clinic in terms approved by the authorised psychiatrist;

iv.to provide the said service with the results of any random drug screens;

v.to inform that service immediately of any evidence of her resumption of use of illicit drugs;

vi.to inform that service immediately if she fails to attend the Peel Street Clinic or discontinues any drug rehabilitation program there;

9.    That she not drive a motor vehicle.

1. The legislative scheme in the Mental Health Act provides for a system of ongoing review of the appropriateness of the forensic order and limited community treatment by the Mental Health Review Tribunal. Under section 200, this must occur at least every six months, but may occur more often. It may occur on the initiative of the Tribunal or on application by the patient or the Director of Mental Health. On such a review, the Tribunal can continue or revoke the forensic status of the patient. It can review and revoke or amend the terms of limited community treatment, having regard to the patient's mental condition and the risks that she poses to herself and others at the time of review. Accordingly, there is a system in place for continued monitoring and review, not only in the interests of the patient, but also in the interests of the community.

1. When the matter was last before the Court, I directed that a transcript of evidence be prepared, and that copies of the medical reports, that transcript and my reasons as well as the formal order of the Court be made available to the treating team and to the Mental Health Review Tribunal in due course. 

1. I give a similar direction with respect to a transcript of the proceedings today and I include in the material to be made available to the treating team and the Mental Health Review Tribunal the letter from Dr Reddan to the Mental Health Court of 16 March 2004 and the attached pathology reports; the report of Dr Dark dated 17 March 2004; and the letter from E Byrne, dated 17 March 2004.