Re Morris
[2013] QMHC 7
•24 June 2013
MENTAL HEALTH COURT
CITATION:
Re Morris [2013] QMHC 7
PARTIES:
REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF PAUL MORRIS
PROCEEDING NO:
0132 of 2012
DELIVERED ON:
24 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
14 June 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr J ChalkFINDINGS AND ORDERS:
- There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offences.
- The defendant is permanently unfit for trial.
- A Forensic Order is not required.
- A copy of the transcript of the proceedings is to be provided to Dr Nyst.
- A copy of these reasons for decision and a copy of the reports of Dr Mann and Dr van de Hoef are to be provided to Dr Nyst and the Director of Nursing at the defendant’s nursing home.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with twenty six offences involving indecent treatment of children under 16 and under 12, common assault and rape – where defendant was diagnosed with frontotemporal dementia and a number of other co-morbidities – where defendant was 87 years of age and was physically frail and of general ill health – where defendant denied the charges – whether there is a reasonable doubt, pursuant to s 268 Mental Health Act 2000 (Qld), that the defendant committed the alleged offences so that the Mental Health Court can no longer proceed in relation to the offences – whether the defendant is fit for trial – whether a Forensic Order is required
Mental Health Act 2000 (Qld), ss 268, 288(1)(b), 288(4)
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental Health
S Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
A LYONS J:
This is a reference by Legal Aid Queensland in relation to Paul Morris. He is charged with 26 offences all of which are alleged to have occurred on 5 April 2012. The offences involved six children between the ages of 10 and 13. Mr Morris is currently 87 years of age and is now living in a dementia specific nursing home. At the time of the alleged offences, Mr Morris was living in a Housing Commission home and was known to some of the children. He had previously invited the children into his home and offered them cigarettes, money, biscuits or fruit. It is alleged that on 5 April 2012 he offered the children money to engage in sexual acts with him and that he subsequently sexually assaulted some of the children. On 5 May 2012 police spoke to him with his daughter present. He denied the allegations and said he did know the children. On 6 April 2012 he had attempted suicide.
On 14 June 2013 I made a number of orders and findings in relation to this reference and gave short reasons. I indicated that given the seriousness of the issues in this case I would publish more extensive reasons in due course. These are those reasons.
The Court has the benefit of a number of reports, in particular, reports of Dr Mikli, Dr Mann and Dr van de Hoef as well as the advice of the assisting psychiatrists.
Dr Mikli
Dr Mikli indicates that Mr Morris was admitted to the Prince Charles Hospital on 6 April 2012 after the suicide attempt and remained an inpatient until 15 June 2012. She indicated he was diagnosed with frontotemporal dementia but also has a number of other co-morbidities, including aspiration pneumonia, asthma, myocardial infarction, haematuria, macular degeneration, chronic obstructive airways disease, diverticulosis, upper gastro intestinal bleeding and chronic kidney disease. Dr Mikli indicated that Mr Morris did not have any capacity to participate in a hearing due to his dementia and would never have the capacity to attend court. Dr Mikli indicated that there were degenerative processes at work and that he had had a decline in functioning over a two year period.
Dr Mikli indicated that there was a history of increased agitation, disinhibited behaviours and paranoia. A CT scan of Mr Morris’ brain was conducted on 6 April 2012 and indicated chronic changes involving periventricular microangiographic changes and diffuse atrophy with no acute pathology. Dr Mikli stated that a SPECT investigation of his brain on 17 April 2012 showed mild to moderate symmetrical frontotemporal perfusion abnormalities which she considered were consistent with a diagnosis of frontotemporal dementia. A Mini Mental State Exam on 20 April 2012 showed a result of 21 out of 30. Dr Mikli stated that Mr Morris’ behaviour during the assessment indicated impulsive behaviour, impaired insight, loss of empathy and impaired social awareness.
Dr Mann
Dr Mann, in a report dated 12 July 2012, indicated he had assessed Mr Morris the previous day. Dr Mann considered that Mr Morris suffered from frontotemporal dementia and it is likely that he suffers from the behavioural variant which is characterised by disinhibition and agitation. Dr Mann indicated that frontotemporal dementia represents a disease of the mind. He considered that Mr Morris had had the disease for the last two years and that his mental disease had likely been fluctuating and consisted of periods of irritability and disinhibition. He considered the dementia was a deteriorating condition and was likely to worsen. He did not consider his symptoms would resolve significantly with further treatment.
In relation to unsoundness of mind, Dr Mann considered that Mr Morris was deprived of the capacity to control his actions at the time due to behavioural disturbances associated with his dementia and he suffered from disinhibition and lack of impulse control as a result of his dementia. He also considered he was deprived of the capacity to know he ought not do the act or make the omission and was deprived of the ability to reason with a moderate degree of sense and composure.
Whilst Dr Mann considered that Mr Morris had some understanding of the charges he faced, he considered that his understanding was incomplete and that he was incapable of fully understanding his charges due to his dementia. He did not consider he would be able to exercise his right of challenge, even with the assistance of his legal representatives and could not fully understand the nature of the proceedings and would be incapable of following the proceedings in court. He did not consider he was capable of entering a plea or of deciding what defence to rely on.
Dr Mann considered he was not fit for trial and that the unfitness was permanent.
Dr Mann, however, did not consider that Mr Morris met the criteria for an Involuntary Treatment Order as he was not unreasonably refusing treatment nor was he in immediate danger of deterioration. He considered he lacked the capacity to consent but that dementia was not a disease usually considered under the Mental Health Act 2000 (Qld) (the “Act”). He did not consider Mr Morris required inpatient treatment in a psychiatric facility but required placement in a dementia unit. He did not believe a Forensic Order was warranted.
Dr van de Hoef
Dr van de Hoef also prepared a report dated 10 November 2012 in relation to an assessment she performed on 1 November 2012. Dr van de Hoef stated that Mr Morris suffers from moderately severe dementia, probably of mixed vascular and Alzheimer’s type, which is progressively diminishing his cognitive abilities in a number of domains, most notably memory, executive functioning (including insight, judgment, impulse control and decision-making) and language abilities. She considered that the clinical picture which is supported by scans is consistent with frontotemporal dementia.
Dr van de Hoef indicated that Mr Morris’ cognitive losses are made more difficult by partial blindness due to macular degeneration, his industrial deafness and severe mobility problems. She considered that his dementia probably began in 2010 and has progressed rapidly in the last two years with a further decline in the last six months. She stated he was frail and barely independently mobile. She considered he has high care needs and was in precarious health. Dr van de Hoef stated that Mr Morris was possibly in the last year of his life. Dr van de Hoef considered that Mr Morris was suffering from a moderately severe dementing illness at the time of the alleged offences and that his disease was a natural mental infirmity.
Dr van de Hoef, however, considered that during the interview, Mr Morris repeatedly disputed the factual basis of the charges. Whilst Dr van de Hoef considered that his dementia clearly affected aspects of the account that he was able to give, she did not think the dispute arose from his dementia. She did not consider he was so forgetful or demented that he had forgotten sexual contact with six children. In relation to the assault charge, he gave an account of his belief that he had money stolen from his wallet and that he had confronted the children and a parent about it.
Dr van de Hoef noted that the witnesses corroborated the confrontation, but not the theft. Dr van de Hoef considered that Mr Morris’ belief that he had been robbed may have been mistaken but there was no evidence that he was psychotic at the time. She considered his disease of the mind may have affected his memory of where his money was but not of assaulting the children. She considered that it is a dispute of facts which is not related to his disease of the mind.
Dr van de Hoef considered, however, that if the dispute did arise from his natural mental infirmity, then the dementia would not have deprived him of the capacity to understand the nature of the acts, but was highly likely to have deprived of him of both the capacity to know he ought not do the act and the capacity to control his actions due to his diminished empathy, impaired judgment, disinhibition and impaired impulse control, all of which are features related to his frontal lobe pathology.
Dr van de Hoef considered that Mr Morris was currently unfit for trial and that there is no doubt that he does not understand the charges against him and in fact believes they have been dropped or already dealt with. She also considered that his ability to instruct counsel is also impaired. She did not consider he could withstand the rigours of a trial without detriment to his mental health. She considered that his unfitness is likely to be permanent.
Dr van de Hoef also did not consider that he met the criteria for an Involuntary Treatment Order and that his needs were being met in the nursing home. She considered he was being adequately treated and was appropriately placed with supports in place for his high care needs. Dr van de Hoef considered that a Forensic Order may be imposed, although given his physical disabilities in the absence of a treatable mental illness, she doubted whether it would make any difference to his well being or the safety of others.
Is there a dispute of facts?
It is clear that this Court may not proceed to determine a reference if there is a reasonable doubt that Mr Morris committed the alleged offences. Section 268 of the Act provides as follows:
“268 Reasonable doubt person committed offence
(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).
(2) However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.
(3) If elements of the disputed offence are elements of another offence (the alternative offence), subsection (1) does not prevent the court from making a decision under section 267(1)(a) for the alternative offence.”
I am persuaded by Dr van de Hoef’s evidence that Mr Morris is emphatically denying the charges. I also not that he denied the chargers at the time and that there is some corroboration for his account of what occurred. It is clear therefore that this Court can not proceed further to determine the reference.
The Court therefore needs to determine whether Mr Morris is fit for trial.
Is Mr Morris fit for trial?
I note that the clear evidence of Dr Mikli, Dr Mann and Dr van de Hoef is that Mr Morris is not fit for trial and that this condition is permanent. I also note the update report dated 13 June 2013 from Dr Nyst who is Dr Morris’ general practitioner. Dr Nyst states:
“He presents with a known history as follows:-
Bladder cancer
Dementia
Depression
COPD
Macular degeneration
Deafness
Melanoma backHe is ambulatory - walking slowly with a walking frame. He is a large man but is generally unsteady on his feet during ambulation. His mobility is worsened by a previous fall which resulted in bilateral fractured hips. He is at a high risk of falls. He is frequently wheel chaired at the nursing home for any extended movement to avoid the risk of falls. His mood is generally settled and he is interactive verbally with staff. He is disorientated in time - gave "2011" for the Year and "July" as the month. He does not know the date, but does know that today is Thursday (correct). He has commented to me that he feels depressed, but has never expressed suicidal ideation in the course of our consultations. He is taking the medications as listed on the attached medical chart.
I have discussed Paul's general behaviour towards Carer staff with the Director of Nursing. She reports that Carer staff are at times inappropriately dealt with by Paul Morris. They cite episodes when he is being showered where he may make a sexual inappropriate comment to the Carer staff suggesting they become involved in a sexual activity with him. These behaviours are able to be adequately dealt with by mature age Carer staff. I do not think such sexual comments are that uncommon within an aged and demented population, certainly such behaviours have been apparent with other residents from time to time.
Paul is also never out of the facility of Woodlands Park unattended. On any outings, Paul is always accompanied by his daughter. His general mobility is too frail for him to be currently able to walk about unassisted within the broader community. I think that because of his overall frailty, he would not pose a high risk to others within his current nursing home environment.”
I am satisfied that the clear evidence is that Mr Morris is not fit for trial and that this is a permanent condition.
Is a Forensic Order required?
Section 288(1)(b) of the Act provides that the Court may make a Forensic Order if there is a finding of permanent unfitness for trial. Section 288(4) then provides that in coming to that determination, the Court must consider the seriousness of the offence, the person’s treatment needs and the protection of the community.
Dr van de Hoef did not consider that a Forensic Order would make any difference to Mr Morris’ well being or the safety of others given his significant physical limitations and his deteriorating health. Dr van de Hoef noted that from the contents of Dr Nyst’s report, the nursing home staff are already well aware that Mr Morris can be sexually dis-inhibited although they may not be aware that there are allegations against him in relation to children.
Dr Mann stated that he did not consider Mr Morris required inpatient treatment in a psychiatric facility but he considered that Mr Morris required placement in a dementia unit. Dr Mann indicated that he did not believe a Forensic Order was warranted as Mr Morris is appropriately accommodated and there were sufficient safeguards in place.
The assisting psychiatrists did not consider that a Forensic Order was warranted in the circumstances of this case given Mr Morris’ physical frailty and ill health. It was also clear from their advice that as Mr Morris has frontotemporal dementia, he does not have a mental disease which can be treated. The assisting psychiatrists considered that his risk to the community was quite low.
I am satisfied that Mr Morris is appropriately accommodated in his current nursing home placement and is being well managed by experienced, mature staff. He was well assessed by the Prince Charles Hospital team before this placement was made. The only significant benefit that a Forensic Order may convey would be to formally and continuously place the nursing home and others on statutory notice that Mr Morris ought not be allowed unsupervised access to children. The assisting psychiatrists advised, however, that this could be appropriately managed by Dr Nyst and the Director of Nursing. They further advised that a copy of these reasons and the reports of Dr Mann and Dr van de Hoef should be provide to both Dr Nyst and the Director of Nursing so they are fully aware of the background circumstances.
Accordingly, I am satisfied that a Forensic Order is not required. I will order that a copy of the transcript of the proceedings be provided to Dr Nyst. I will also order that a copy of these reasons for decision and a copy of the reports of Dr Mann and Dr van de Hoef be provided to Dr Nyst and the Director of Nursing at Mr Morris’ nursing home.
ORDERS:
1. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offences.
2. The defendant is permanently unfit for trial.
3. A Forensic Order is not required.
4. A copy of the transcript of the proceedings is to be provided to Dr Nyst.
5. A copy of these reasons for decision and a copy of the reports of Dr Mann and Dr van de Hoef are to be provided to Dr Nyst and the Director of Nursing at the defendant’s nursing home.
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