Re MVP

[2013] QMHC 12

MENTAL HEALTH COURT

CITATION:

Re MVP [2013] QMHC 12

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF MVP

PROCEEDING NO:

0026 of 13

DELIVERED ON:

22 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

1. That the defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.

2. That the defendant is permanently unfit for trial.

3. 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 offences.

4. That a Forensic Order is not required.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with offences alleged to have occurred in 1983 and 1984, namely two counts of attempted murder, stealing, unlawful wounding with intent to cause grievous bodily harm and attempted grievous bodily harm – where defendant had been abusing alcohol at the time of the offences – where victim of the offences was the defendant’s partner who had been domestically violent towards the defendant – where defendant had no further history of violence following the offences – where defendant suffers from severe cognitive impairment most probably due to dementia – whether defendant was of unsound mind at the time of the alleged offences as defined in the Schedule of the Mental Health Act 2000 (Qld) – whether defendant is fit for trial – whether a Forensic Order required

Mental Health Act 2000 (Qld), Schedule, s 283

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health
C Lloyd for the Director of Forensic Disability
S Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Forensic Disability
Director of Public Prosecutions (Qld)

A LYONS J:

Background

1. This is a reference filed by Legal Aid Queensland on 4 February 2013 in relation to MVP. MVP is charged with a number of offences which are alleged to have occurred in 1983 and 1984. In relation to the 1983 offences, she is charged with stealing between 31 August 1983 and 7 September 1983. MVP was accused of stealing a bucket, mop, two brooms and a kerosene heater from a neighbour in 1983. MVP stated that she had not stolen the items but had borrowed them and intended to plead not guilty to the charges at her committal.

1. In relation to the 1984 offences, she is charged with attempted murder on 24 October 1984, with unlawful wounding with intent to cause grievous bodily harm on 24 October 1984, with attempted murder on 27 December 1984, and with attempted grievous bodily harm on 27 December 1984. All of the 1984 offences are alleged to have been committed, in the context of alcohol abuse by MVP, against her de facto partner Mr Phee who had a history of physically abusing her. With regard to the October 1984 charges of attempted murder and unlawful wounding, police had been called to their residence at a caravan park, where they witnessed MVP stab Mr Phee with a kitchen knife as she shouted, "I'll kill you, you bastard".[1] Mr Phee reportedly told the police he was not going to press charges as MVP had been drinking rum and said, "she always goes stupid when she drinks rum" and that he “deserved what (he) got. (He had) been giving her a hard time all day".[2] MVP told police that Mr Phee had just been released from jail for assaulting her and that she did not have to put up with his behaviour any more. She stated that she just wanted to get out of the relationship.

   [1]Report of Dr Schramm dated 10 December 2012, at p 11.

   [2]Ibid, at p 12.

1. In relation to the December 1984 charges, MVP was staying at a women's shelter and fled to the police station when Mr Phee began following her.  It is alleged that when he entered the station she took a pair of scissors from a desk and attempted to stab Mr Phee with them.

1. Whilst MVP was charged with these offences in 1983 and 1984, it would appear that, whilst she attended the committal, for some reason the charges never proceeded to trial. MVP was arrested on an old warrant on her 70^th birthday, when she went to renew her driver’s licence.

Medical reports

1. Ms Anne Richmond, a psychologist, treated MVP for post traumatic stress disorder in 2008 and saw her for 12 sessions between June and November 2008 as part of the Department of Communities’ Redress Scheme for Former Residents of Queensland's Children's Institutions. Ms Richmond obtained a background history which indicated that MVP was placed at the St Vincent's Home orphanage at the age of nine months. Whilst her sister and brother were also placed in this home, she was not told of their relationship until she was 11 years old. She left the orphanage at age 18 unable to read or write and reported that she had suffered physical, psychological, emotional and sexual abuse during her stay there.

Dr Schramm’s report

1. In a report dated 10 December 2012, Dr Schramm indicated that MVP’s MMSE score was 16 out of 30 and that whilst she knew the day of the week, the month and the season, she guessed the date and the year incorrectly. Dr Schramm also indicated that MVP had significant difficulty registering new information and that an examination of her executive functioning revealed marked problems. She also had problems with abstract concepts as well as her dominant and non-dominant parietal lobe functioning. Dr Schramm concluded that MVP was a 70 year old woman who had endured a life of trauma and misfortune from childhood and into her early fifties. She lived for 18 years in a Catholic orphanage where she was abused and then went into a violent and abusive marriage. She began to drink heavily and for 20 to 25 years was dependent on alcohol. During that period she was embroiled in yet another abusive and violent relationship with Mr Phee, who was the complainant in the two attempted murder charges.

1. Dr Schramm stated that MVP has very little memory for that period of her life and was also suffering from a great deal of emotional pain, suggestive of post traumatic stress disorder, for much of her life but did not seek formal treatment until 2008 when there were publicised investigations into institutional abuse and she received some counselling for post traumatic stress disorder from a psychologist.

1. Dr Schramm indicated that MVP had suffered from cognitive impairment for a number of years, the aetiology of which was not clear, however, alcohol related dementia was possible. Dr Schramm noted that, whilst she had some relative emotional improvement in recent years following a stable relationship, she has deteriorated after unexpected and devastating news that she is facing serious criminal charges from the mid 1980s. Dr Schramm considered that her report that she has no memory of the offences is probably genuine.

1. Dr Schramm concluded that whilst MVP would have been suffering from some conditions which could be called mental disease such as post traumatic stress disorder at the time of these offences, he did not consider that she would have been deprived of any of the relevant capacities at the time. He also noted that the violent offences occurred against a background of heavy drinking where she was acting against a highly abusive man after “a life of being victim of much violence”.[3]

   [3]Ibid, at p 19.

1. Dr Schramm considered that with her cognitive impairments MVP would be unfit for trial and that that would be a permanent situation. He stated that while she can appreciate she is charged with serious offences and can name the offences, she cannot retain details of the offences when they are put to her for long enough to enable her to comment on them. He does not consider that MVP has the ability to exercise her right to challenge, to follow the course of proceedings, to understand the substantial effect of the evidence or to make a defence. He did not consider that a Forensic Order was required.

1. Dr Schramm provided an addendum report dated 3 October 2013 and indicated that he could not detect any gross change since he last interviewed MVP. He also stated that whilst her cognitive function does not seem to have deteriorated markedly, she certainly has not significantly improved. He considered that her deficits are likely to be the result of a dementia illness. He maintained his view that she does not have the cognitive capacity to participate meaningfully in her defence.

Dr Reddan’s report

1. Dr Jill Reddan completed a report dated 28 August 2013. In that report she stated that MVP had spent her entire childhood in institutions and was essentially a person of low average intellect with learning difficulties and/or a reading disability, who was deprived and abused. Dr Reddan indicated that this had an impact on her developing personality and has left her with a legacy of low self-esteem, undeveloped or unsophisticated social skills, dependency, timidity and tendency towards anxiety. She has always been fearful of others and finds it difficult to assert herself.

1. Dr Reddan noted that she married a cruel alcoholic and that after they were married, she began to abuse alcohol. She had two children with whom she has maintained good relationships. She then formed a relationship with John Phee, but has no memory of this relationship. It would seem that both she and Mr Phee were drinking extremely heavily and Mr Phee similarly abused MVP. She subsequently entered rehabilitation and became alcohol free and met Malcolm Thompson with whom she was in a relationship for 15 years. During that time, her life stabilised and she enjoyed a very good relationship with Mr Thompson until he died in 2013. She was able to function in jobs at times and has maintained regular volunteer work for the Salvation Army.

1. Dr Reddan noted that MVP was cooperative with the court processes and presented herself for the committal proceedings in February and March 1985. Dr Reddan noted that when she failed to appear in June 1985, a bench warrant was issued, but was not acted on until October 2012.

1. Dr Reddan concluded that there is no evidence that at the time of the alleged offences MVP was suffering from a serious major mental illness, but it would appear that in relation to the attempted murder, attempted grievous bodily harm and unlawful wounding charges, she was to some degree intoxicated and in distress about Mr Phee’s abuse of her. Dr Reddan noted that there is no history of any further charges and she has not been prone to violence since.

1. Dr Reddan indicated that there is no evidence that at the time of the alleged offences MVP was suffering from a mental disease so as to deprive her of any of the capacities and she could not recommend that she had a defence of unsoundness in relation to any of the offences.

1. Dr Reddan agreed that MVP displays cognitive impairment but was not satisfied this was due to dementia. She considered that this impairment is probably life long and indeed noted that MVP had a poor memory as far back as 1985. Dr Reddan concluded that in the 30 years since these offences occurred and with her borderline intellect and her overwhelming anxiety, MVP is at a serious disadvantage in defending these charges and that, on a balance of probabilities, due to all of those factors, she is unfit for trial. She does not consider MVP would need a Forensic Order.

Dr Douglas

1. Dr Lucille Douglas, a psychologist, performed a number of tests on 15 July 2013 and concluded:

“The current cognitive test results would support the presence of a dementia in this individual that has resulted in global cognitive impairment. [MVP’s] intellectual, memory, attentional, learning and speeded abilities all fall significantly and abnormally below the level expected, even for an individual with her dysfunctional and traumatic background. Her comprehension skills are equivalent to someone who has completed no more than a year of formal schooling, her thinking is exceedingly concrete and she was observably confused and had difficulty following instructions during testing. All of these would suggest that this woman is not fit for trial and would be unable to adequately follow Court proceedings even with extensive accommodations. Given that the dementia will not remit over time but will most likely worsen, this unfitness for trial should be considered permanent.”[4]

[4]Report of Dr Douglas dated 30 August 2013, at p 9.

Dr Reddan’s further report

1. Dr Reddan wrote a further report dated 10 September 2013 after having considered Dr Douglas’ findings and concluded that MVP is not fit for trial but did not agree that her cognitive ability was due to dementia. Rather, she considered it likely that MVP’s illiteracy arose from her borderline to low average intellect with associated likely reading disability, as well as a very poor memory. Dr Reddan agreed that MVP is likely to be overwhelmed by a large amount of information.

The advice of the assisting psychiatrists

Dr McVie

1. Dr McVie indicated that there is no evidence that MVP was of unsound mind at the time of the commission of any of the alleged offences. She stated however that the advice of Dr Reddan and Dr Schramm was very clear and that MVP was not fit for trial. Dr McVie advised that I should prefer the report of Dr Schramm and stated that he has detailed her recent cognitive testing and difficulties with memory which do not fit with a history of pure intellectual disability, although she does have a pre-existing borderline or low average intellectual functioning from childhood which is evidenced by her inability to achieve literacy. Dr McVie advised that the Court should accept Dr Schramm’s evidence “that it is likely that 20 years plus of severe alcohol abuse, or alcohol dependence, may well have resulted in some brain damage and there may well be a dementia present”.[5] Dr McVie concluded that the combination of cognitive defects will render MVP permanently unfit for trial. She stated that both Dr Schramm and Dr Reddan have identified that the cognitive deficits are not reversible. Dr McVie agreed with the opinions of Dr Schramm and Dr Reddan that a Forensic Order was not required.  

   [5]T1-11, at lines 43-45.

Dr Lawrence

1. Dr Lawrence also agreed that the reports indicated that MVP was the subject of a very disadvantaged and disordered childhood. She noted that MVP then entered into several very dysfunctional relationships and indulged in significant alcohol abuse over a period of time in the context of abuse by those partners. Dr Lawrence noted that the offences occurred in the context of domestic violence with alcohol abuse in both partners.

1. Dr Lawrence noted that subsequent to the offending behaviour, MVP was able to turn her life around and attended substance abuse programs and became abstinent from alcohol. She then entered into a supportive and stable relationship for 17 years. Dr Lawrence also indicated that she would also prefer the report of Dr Schramm and accepts that whilst there is an innate intellectual impairment which was aggravated by brain damage, it is clearly demonstrated that MVP has cognitive decline and that because of this cognitive decline she does not fulfil the requirements to be fit for trial.

1. Dr Lawrence stated that she would support the opinions of Dr Schramm and Dr Reddan in relation to her fitness for trial and also agreed that there would not be a need for a Forensic Order. Dr Lawrence noted that MVP’s current circumstances were stable and she did not need any acute or active treatment. Dr Lawrence did not consider a Forensic Order was required for the protection of the community.

Conclusion

1. The evidence clearly indicates that, whilst MVP may have been suffering from post traumatic stress disorder at the time of the 1984 offences, there is no evidence to indicate that she was deprived of any of the relevant capacities at the time.  I am therefore satisfied that MVP was not of unsound mind at the time of any of the offences.

1. The next question which must be determined therefore is whether these proceedings should continue according to law.  Is MVP fit for trial?  The overwhelming evidence is that MVP is unfit for trial and that this condition is permanent. MVP has a severe and documented cognitive impairment, most probably due to dementia, but against a background of impaired intellectual functioning and alcohol abuse. I am satisfied on the basis of the reports of Drs Schramm, Reddan and Douglas, and the advice of the assisting psychiatrists, that MVP is permanently unfit for trial.

Is a Forensic Order required?

1. Whilst MVP’s offences are of a serious nature, there is no history of any further charges since 1984 and I accept that she has not been a woman prone to violence since then. The offences occurred almost 30 years ago when MVP was abusing alcohol and against a background of domestic violence. She has remained abstinent from alcohol for 17 years.

1. All evidence indicates she is no threat to anyone and she does not require any psychiatric treatment or hospitalisation. The psychiatrists all agree that there can be no benefit gained from a Forensic Order. She is receiving appropriate treatment and care from her General Practitioner. She resides with her son and daughter-in-law who provide ongoing support. Any prescribed medication is supervised by her daughter-in-law.

1. I find that whilst MVP is permanently unfit for trial, a Forensic Order is not required.

ORDERS:

1.     That the defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.

2.     That the defendant is permanently unfit for trial.

3. 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 offences.

4.     That a Forensic Order is not required.