Re MS

[2009] QMHC 12

MENTAL HEALTH COURT

CITATION:

Re MS [2009] QMHC 12

PARTIES:

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

FILE NO/S:

No 0217 of 2008

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2009

JUDGE:

Ann Lyons J

ASSISTING
 PSYCHIATRISTS:

Dr E N McVie
Dr A Davison

FINDINGS AND ORDER:

1.   That at the time of the alleged offence on 29 January 2004 the subject of the references the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2.   That the defendant be detained as a forensic patient at Logan Beaudesert Authorised Mental Health Service;

3.   That limited community treatment is approved to the Logan Beaudesert Authorised Mental Health Service at the discretion of the authorised psychiatrist, on the conditions set out in the draft Order:

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with a negligent act causing harm – whether the defendant was of unsound mind at the time of the offences

COUNSEL:

Mr D Finch for the Defendant
Mr J Tate for the Director of Mental Health

Mr J Briggs for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is the reference in relation to MS.  This is a reference by the legal representatives for MS.  MS is facing one indictable charge of a negligent act causing harm on 29 January 2004. 

1. The police brief indicates that the defendant carried her 12 month old daughter into a unit and advised the occupants that she needed somewhere to hide as police had arrived.  Witnesses clearly indicated that at that point the defendant was under the influence of some drug and was “out of it”.  She was then seen to place a cigarette on the arm of her 12 month old baby.

1. In her interview with both Dr Keane and Dr Khoo the defendant gave a confused but consistent account of what happened.  She initially indicated that her female neighbour was holding an unlit cigarette which then turned into a lit cigarette and the neighbour burned her daughter.  The defendant also indicted that when police arrived a policeman who was holding her daughter was smoking and that the policeman, despite a warning from the defendant then burned her daughter on the leg.

1. The accounts to both were confused, disjointed and difficult to understand chronologically.  At a later point in the interview with Dr Khoo, the defendant also stated, “I accidentally burnt her when she ran into me”.  However, she later denied this.  There is no doubt that the defendant was affected by drugs at the time as this was clearly observed by witnesses.  It is not certain, however, what those drugs were or the amounts ingested. 

1. The defendant was examined recently by Dr Keane.  She states that in her opinion the defendant clearly has a diagnosis of paranoid schizophrenia as well as opioid dependence and mild mental retardation.  Dr Keane had performed a neuropsychological assessment on the defendant and indicated that the testing showed that the defendant’s thinking and reasoning abilities placed her in the extremely low range. 

1. The defendant also has an extensive mental health history and it would appear that she was admitted to the Logan Hospital after these offences and was there for almost a week.  Whilst the report of Dr Garg of 17 January 2007 indicates that the defendant had her first episode of psychosis in 1999 it would appear on the material that it actually commenced in 1997.

1. The defendant’s illness is clearly in the context of polysubstance abuse including heroin, amphetamines and cannabis.  In 1999 she was admitted to the Royal Brisbane Hospital for three months and diagnosed with paranoid schizophrenia.  The reports all give a clear indication that her illness is characterised by auditory hallucinations with delusions of persecution.  In particular, the reports refer to the defendant’s long history of auditory commands, and indeed, auditory commands involving harm to her children. 

1. The defendant has a long history of non-compliance with medication and of absconding from treatment.  She has had multiple and numerous admissions to hospital.  She has been placed on involuntary treatment orders in the past and has depot antipsychotics, but she has continued to have residual symptoms.  The defendant also admits to abusing drugs including cannabis, amphetamines as well as paint and glue. 

1. Dr Khoo, in her extensive report, considered that the defendant has suffered from a paranoid schizophrenic illness which was well documented since 1997.  In her report, Dr Khoo noted that the defendant initially presented distressed by auditory hallucinations of a derogatory nature telling her to harm her child as well as delusional beliefs involving Satan.  She was noted to be formally thought disordered and to be responding to auditory hallucinations, staring at walls and giggling.

1. I consider that the medical file has extensive evidence to indicate the persistence of auditory hallucinations of a derogatory nature for many years and, in particular, that these hallucinations include commands to harm her children.  I rely on Dr Khoo’s report, in particular, which states that she considers the defendant’s fragmented recollection of the alleged offence was most likely a reflection of her psychosis, intoxication with cannabis and sniffing paint, which was also complicated by her limited intellectual functioning.  I do not consider there is any dispute on the facts.

1. The Court must determine whether the defendant was of unsound mind at the time of the offence having regard to the schedule two definition of unsound mind which provides that unsoundness of mind means the state of mental disease or natural mental infirmity described in the Criminal Code s 27 but does not include a state of mind resulting to any extent from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.

1. On the basis of the medical reports and having considered the advice of the assisting psychiatrists I consider that it is clearly established that at the time of the offence the defendant was experiencing a relapse of her chronic paranoid schizophrenic illness and that she was psychotic.  She clearly had a 10 year history of command hallucinations involving harm to her children. 

1. The defendant was therefore suffering from a disease of the mind.  However there is no dispute that she had also used marijuana and other substances and probably sniffed paint at the time of the commission of the offence.  Accordingly, the essential issue is this question of intoxication.  The test in this regard is well recognized and well explained in the decision of Re LIH [2002] QMHC 014 as, “the need for the Court to determine whether the person is deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication”.

1. In her report and her oral evidence, Dr Khoo was firmly of the opinion that the defendant was, in fact, in such a state of disturbance of mind that she was deprived of the capacity to know she ought not do the act when she was witnessed burning her baby with the cigarette.  She considered that the defendant’s deprivation of that capacity was caused solely by her psychotic symptoms. 

1. This view is the view shared by the assisting psychiatrists.  It is clear they consider that the schizophrenic illness was the primary condition affecting her functioning and it deprived her of the capacity to know she ought not do the act.  Having considered the reports and the advice of the psychiatrists I consider that by virtue of her mental illness complicated by her mild mental retardation the defendant was deprived of the capacity to know she ought not do the act at the time she applied the cigarette.

1. I consider that even though the defendant was affected by illicit drugs, or inhalants, at the time of committing the offence, such that it may have impaired her ability to control her actions or understand what she was doing, the deprivation of the capacity to know that she ought not do the act was caused solely by her psychotic symptoms.  I consider that intoxication was indeed an added extra which had no additional impact on the deprivation which arose solely from the mental illness.

1. I agree that the quantity of intoxicants may well be related to the intensity of the illness and the extent of the auditory commands she was experiencing at the time.  The defendant clearly still has an active psychosis which involves these auditory commands to harm her children.  I therefore consider that the defendant was of unsound mind at the time of the commission of the offences and she was deprived of the capacity to know she ought not do the act. 

1. I consider a forensic order is required, given a clear risk to her children.  I consider that whilst the defendant’s needs assertive case management and supervision, particularly in relation to her underlying use of substances, the most appropriate way this should be managed is by the treating team.

1. Accordingly there will be a forensic order.  In terms of the conditions in that order I order that the defendant be detained to the Logan Beaudesert authorised Mental Health Service, otherwise I will order that the conditions be those conditions as submitted from the legal representatives for the defendant.  And the reports made available to the treating team.