Re MPJ
[2013] QMHC 19
•10 December 2013
MENTAL HEALTH COURT
CITATION:
Re MPJ [2013] QMHC 19
PARTIES:
REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF MPJ
PROCEEDING NO:
0255 of 2012
DELIVERED ON:
Ex tempore reasons delivered on 10 December 2013
Written reasons delivered on 13 December 2013
DELIVERED AT:
Brisbane
HEARING DATE:
14 October 2013, 10 December 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr M L KhooFINDINGS AND ORDERS:
That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence of assault occasioning bodily harm on 21 May 2010.1.
That, pursuant to s 283 of the Mental2. Health Act 2000 (Qld), the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offence of assault occasioning bodily harm on 21 May 2010.
That a Forensic Order (Mental Health Court–Disability) be made pursuant to s 288(7) of the Mental Health Act 2000 detaining the defendant to the Royal Children’s Hospital Authorised Mental Health Service.3.
That a Limited Community Treatment order pursuant to s 289 of the Mental Health Act 2000 to commence immediately is approved on the following conditions:4.
a. That the patient comply with the requirements of the authorised psychiatrist in relation to the care as provided under the treatment plan, including engagement in disability support services provided by the Department of Communities, Disabilities and Community Care Services;
b. That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;
c. That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist;
d. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist;
More than Overnight:
e. That the patient reside at an address or at a place approved in advance in writing by the authorised psychiatrist;
f. That the patient must attend an appointment with a psychiatrist and all follow up appointments and in-patient care as required by the authorised psychiatrist.
That a copy of the transcript and reasons for finding be released to the legal representatives, Police Prosecutions and the Department of Communities, Child Safety and Disability Services.5.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assault occasioning bodily harm – where defendant also charged with Commonwealth offences not the subject of this reference, including five counts of using a carriage service to menace, harass or cause offence and one count of using a carriage service for a hoax or a threat – where defendant diagnosed with autistic disorder and intellectual impairment – where defendant in the mildly mentally retarded range of functioning – where defendant required extensive personal care and supervision – where defendant had a history of poor engagement with Disability Services – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether a Forensic Order required pursuant to s 288(7) of the Mental Health Act 2000 (Qld) – whether Limited Community Treatment should be approved pursuant to s 289 of the Mental Health Act 2000 (Qld)
Mental Health Act 2000 (Qld), Schedule, s 283, s 288(7), s 288(7)(b)(ii), s 289
COUNSEL:
K M Hillard for the defendant
J Tate for the Director of Mental Health
C J Lloyd for the Director of Forensic Disability
S P Vasta for the Director of Public ProsecutionsSOLICITORS:
Burchill & Horsey Lawyers for the defendant
Crown Law for the Director of Mental Health
Director of Forensic Disability (Qld)
Director of Public Prosecutions (Qld)
A LYONS J:
Background
This is a reference by the legal representatives for MPJ filed on 8 November 2012. MPJ is charged with a number of offences, in particular assault occasioning bodily harm on 21 May 2010, five counts of using a carriage service to menace, harass or cause offence between 19 November 2010 and 21 November 2010 and one count of using a carriage service for a hoax or a threat on 19 November 2010. Only one offence, however, is the subject of this reference and that is the charge of assault occasioning bodily harm on 21 May 2010. The six Commonwealth offences in relation to the use of a carriage service are not the subject of the reference as a reference to the Mental Health Court is not available in relation to Commonwealth offences.
In relation to the assault occasioning bodily harm on 21 May 2010, it is alleged that MPJ was using a screwdriver to interfere with the locks on the doors at a residential service at Bardon. When he was asked by a youth worker to hand over the screwdriver, he commenced swinging the screwdriver wildly at him. When the youth worker grabbed the screwdriver and pulled it from him, MPJ yelled abuse and accused the worker of assaulting him. When another youth worker intervened a short time later, MPJ approached him holding a screwdriver and a mental tent peg and swung both items wildly striking the youth worker several times in the stomach with the screwdriver. The first youth worker then returned to check on the welfare of the second youth worker in MPJ’s bedroom and whilst he was speaking to the second youth worker, MPJ wrapped an extension cord around his neck and pulled it.
The reports
Dr Beech has provided a report to the Court and indicated that at the time of the alleged offences, MPJ was 14 years of age and he may well have matured to some extent in the intervening years. Dr Beech stated that he has a history of significant emotional, learning, social and behavioural disturbances from an early age which occurred in the context of parental neglect, parental mental retardation and early placement in foster care. Dr Beech stated that the material indicates he was given a diagnosis of autistic disorder, and that there have been ongoing significant social difficulties. Dr Beech advised that clinically, he was uncertain whether MPJ’s presentation reflected an autistic disorder such as Asperger’s disorder or a reactive attachment disorder. In any event, Dr Beech concluded that either disorder would constitute a mental disease which has affected his social, emotional and psychological development.
Dr Beech also considered that MPJ had a borderline intellectual functioning. He concluded that, in his opinion, the alleged offence was likely to have been triggered by MPJ’s longstanding sense of injustice and grievance that has evolved from his disorder and has been fostered by his parents’ attitudes, together with the problems that are inherent in foster care and what was later seen as inconsistent management in residential care. Dr Beech concluded that, in his opinion, the mixture of low intellect, the social cognitive and emotional disturbance from his disorder and his upbringing are likely to have acted in concert when MPJ was 14 years of age to have deprived him of the capacity to know what he was doing was wrong.
Professor Nurcombe, in his report, indicated that MPJ has the characteristics of autistic disorder together with mild mental retardation. In addition to those conditions, he considered that MPJ has been exposed to disorganisation, particularly disorganised parenting, domestic dissention, traumatic separations from his family and multiple unsuccessful placements. He noted that MPJ is highly resentful towards his parents and the Department of Child Safety. Professor Nurcombe considered that as a result of those conditions at the time of the alleged offence in the midst of a scuffle with a youth worker at a place of residence where he felt slighted, MPJ was temporarily deprived of the capacity to know he ought not do the act. He considered that MPJ would not have been able to think rationally with a moderate degree of sense and composure at the time of the alleged offence. He was also deprived of the capacity to control his actions and to know he ought not do the act.
Professor Nurcombe considered that MPJ understood the nature and seriousness of the offence but only in a rudimentary way. Professor Nurcombe indicated that even after he tried to educate him about the role of the judge, the probation officer and the lawyers, he still only had a rudimentary understanding and at the end of the interview, had retained little of what Professor Nurcombe had told him. Professor Nurcombe stated, “[h]e has a vague understanding that he should assist the defence lawyer but he does not know how to do so.”[1] Professor Nurcombe considered he would be able to participate but in a limited manner and would be unlikely to attend to the events in the hearing. Professor Nurcombe considered that he did not think MPJ would be able to testify reliably and was not fit to plead.
[1]Report of Professor Nurcombe, dated 20 May 2013, at p 16.
Professor Nurcombe noted that his future management was complicated by the failure of MPJ and his mother to have formed a collaborative relationship with services. Professor Nurcombe did not recommend a Forensic Order.
In a report to the Court dated 13 November 2013, Professor Gregory O’Brien stated that from an early age MPJ has had a diagnosis of autism and noted that he has a remarkable capacity to be unable to empathise with other people. He has a persistent difficulty in relating to other people. Professor O’Brien also referred to his borderline level of intellectual functioning which, when combined with his lack of capacity to understand the needs of others, means he is impaired to a level beyond that which is accountable by borderline intellectual disability.
Professor O’Brien stated that he agreed with Professor Nurcombe “that between his borderline intellectual disability and his serious degree of autism, he functions overall at the level of intellectual disability and as such should be regarding (sic) as being under disability.”[2] Professor O’Brien agreed that in relation to the offence on 21 May 2010, “it was most likely that he was in such a state of distress that, superimposed on the natural mental infirmity from which he was suffering (namely, autistic disorder with mental deficiency), the result was that he was temporarily deprived of capacity to know that he ought not do the said act.”[3] Professor O’Brien also considered he would have difficulty sustaining concentration to follow a trial and to follow the nuances of a conversation. Professor O'Brien referred to MPJ’s over-concrete and simplistic ability to use and understand language. He considered that he is unfit for trial and that would be permanent. Professor O'Brien also noted the history of his difficulty in accepting services over the years.
[2]Report of Professor O’Brien, dated 13 November 2013, at p 4.
[3]Ibid.
Was MPJ of unsound mind?
Both assisting psychiatrists advised that I should accept the reports of the three eminent psychiatrists: Dr Beech, Professor Nurcombe and Professor O’Brien who all diagnosed MPJ with an autistic disorder as well as an intellectual impairment. It is clear that MPJ’s functional ability is in the mildly mentally retarded range of functioning.
I note that all the psychiatrists have opined that he was deprived of the capacity to know he ought not do the act, and probably also the capacity to control his actions in relation to the assault occasioning bodily harm charge which occurred in May 2010.
On the basis of those reports and on the advice of the assisting psychiatrists, I am satisfied that MPJ was of unsound mind at the time of the alleged offence on 21 May 2010. I also note that Dr McVie noted that Professor Nurcombe and Dr O’Brien both clearly opined that MPJ is not fit for trial and this unfitness is permanent. Clearly those opinions will be relevant to a determination as to whether the Commonwealth charges should proceed and I authorise the provision of the reports to Police Prosecutions for that purpose.
Is a Forensic order required?
The more problematic issue is whether a Forensic Order is required in the circumstances of this case. Section 288(4) of the Mental Health Act 2000 (Qld) provides that in determining whether a Forensic Order is required, the Court must have regard to the seriousness of the offence, the person’s treatment or care needs and the protection of the community.
The Court has the benefit of a report from Janice Rushworth who is the Lead Clinician for Disability Services Brisbane. In a report dated 17 September 2013 she outlined the services which could be provided to MPJ. The report indicated that MPJ’s ICAP service score was 37 which indicates a need for extensive personal care and/or constant supervision. The report indicated he needed significant assistance in generally all areas, particularly community living skills, social and communication skills, as well as financial management and budgeting skills. Ms Rushworth noted that there is concern that he is accessing pornography of a sadomasochistic nature and whilst he attended a number of therapeutic sessions between January and March 2013 he declined further sessions. She also noted the history of threats towards Disability Services staff. She also noted that since 6 March 2013 he has cancelled or failed to attend 10 scheduled appointments with the Youth Mental Health Service.
I note that both MPJ’s parents have intellectual impairments and that Child Safety had been involved with the family since June 1999 in relation to child protection concerns. MPJ was removed from his parents in 2002 and was put in a number of foster care placements. He was returned to his parents in November 2003 but after his father was charged with assaulting him the following year he was again removed from his parents’ care in April 2004. There are allegations that MPJ was sexually abused whilst in care. I also note that the Adult Guardian was appointed as guardian for MPH’s mother on 4 March 2013 due to her inability to make complex decisions in relation to accommodation, contact, health care and service provision as well as legal matters.
Ms Rushworth’s report indicated that the recommendation is that MPJ receive 15 to 25 hours a week in home support and 12 to 18 hours of community engagement and skills development. He is currently accessing four hours of individual support through his recurrent funding allocation. It would seem that he has now been allocated a recurrent funding package to assist him to engage more fully in the community and to assist in the home environment which provides two hours of support on a two to one basis. Whilst I note that the support ceased on 13 September 2013 due to the resignation of a support worker, Disability Services are currently attempting to engage an alternative service provider and support worker. He still resides with his mother who has a diagnosed intellectual disability and her own support needs. It is clear that there is a history of distrust towards Services and Agencies which is evidenced by his poor engagement with Services and his threatening and abusive behaviours towards staff working with him. He has also experienced abuse and neglect at home and sexual abuse whilst in care.
I note that MPJ will turn 18 on 23 December 2013 and that a transition plan is currently being prepared to transfer him from the Department of Child Safety.
It is also clear that both assisting psychiatrists recommend the making of a Forensic Order. Dr McVie advised that a Forensic Order is indicated in this case, having regard to the history and the difficulties of engagement with services, and the Forensic Order should be a Forensic Order (Mental Health Court–Disability). Dr McVie stated that autism is in the spectrum of natural mental infirmity rather than mental illness, and this combination of the autism and the intellectual disability has resulted in MPJ’s unsoundness and accordingly there should be a Forensic Order (Mental Health Court–Disability) with Limited Community Treatment.
Dr Khoo noted the enormous challenge that various agencies have had, including the Department of Communities, Child Safety and Disability Services, in trying to engage MPJ and was concerned that since March 2013, he has not kept appointments with the Child Youth Mental Health Service. Dr Khoo stated that she can therefore see no less restrictive way in which to ensure his access to treatment and care other than under a Forensic Order (Mental Health Court – Disability). Dr Khoo was concerned in particular that MPJ will shortly turn 18 and arrangements need to be put in place to ensure that that he does not “fall between the cracks”.
On the basis of that advice I am satisfied that in the circumstances of this case a Forensic Order should be made given the seriousness of the offences, MPJ’s care needs and the protection of the community. It would seem that given the background, the fact that a transition to new services is currently underway and the history of disengagement with services in the past, the only way to ensure the appropriate provision of services and care to MPJ into the future is to make a Forensic Order.
MPJ’s unsoundness and unfitness is clearly due to his intellectual functioning and accordingly the appropriate order is that there should be a Forensic Order (Mental Health Court–Disability) pursuant to s 288(7) of the Mental Health Act 2000 (Qld). There is, however, no capacity to detain him in the Forensic Disability Service and accordingly MPJ is detained to an Authorised Mental Health Service for care pursuant to s 288(7)(b)(ii). I approve Limited Community Treatment to commence immediately.
FINDINGS AND ORDERS
1. That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence of assault occasioning bodily harm on 21 May 2010.
2. That, pursuant to s 283 of the Mental Health Act 2000 (Qld), the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offence of assault occasioning bodily harm on 21 May 2010.
3. That a Forensic Order (Mental Health Court–Disability) be made pursuant to s 288(7) of the Mental Health Act 2000 detaining the defendant to the Royal Children’s Hospital Authorised Mental Health Service.
4. That a Limited Community Treatment order pursuant to s 289 of the Mental Health Act 2000 to commence immediately is approved on the following conditions:
a.That the patient comply with the requirements of the authorised psychiatrist in relation to the care as provided under the treatment plan, including engagement in disability support services provided by the Department of Communities, Disabilities and Community Care Services;
b.That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;
c.That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist;
d.That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist;
More than Overnight:
e.That the patient reside at an address or at a place approved in advance in writing by the authorised psychiatrist;
f.That the patient must attend an appointment with a psychiatrist and all follow up appointments and in-patient care as required by the authorised psychiatrist.
5. That a copy of the transcript and reasons be released to the legal representatives, Police Prosecutions and the Department of Communities, Child Safety and Disability Services.
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