Re O'Malley
[2012] QMHC 12
•19 June 2012
MENTAL HEALTH COURT
CITATION:
Re O’Malley [2012] QMHC 12
PARTIES:
REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF NORMAN ARTHUR O’MALLEY
PROCEEDING NO:
No 301 of 11
DELIVERED ON:
19 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
14 June 2012
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr A S DavisonFINDINGS AND ORDERS:
That the patient was of unsound mind at the time of the commission of the offences;1.
Pursuant to s 288 of the Mental Health Act 2000 (Qld) a Forensic Order be made and the patient be detained at The Park Centre for Mental Health Authorised Mental Health Service; 2.
Limited Community Treatment is approved to commence immediately, subject to the discretion of the authorised psychiatrist, on the conditions set out in the draft submission received from the Director of Mental Health, as follows:3.
That the patient complies with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;(a)
That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; and(b)
That the patient complies with the directions of the nominated staff member/s for the duration of the limited community treatment. (c)
Pursuant to s 292 of the Mental Health Act 2000 (Qld) it is ordered that a correctional officer escort the patient to the Park Centre for Mental Health Authorised Mental Health Service; 4.
That the patient not contact the complainant. 5.
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental Health
D Kovac 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)
ANN LYONS J:
The Charges
This is a reference by the Director of Mental Health filed on 22 November 2011. Mr O’Malley is charged with seven offences which are alleged to have occurred over a two day period. The first offence is alleged to have occurred on 6 May 2011 and the other six offences are alleged to have occurred on the morning of 7 May 2011. The relevant charges are as follows:
· Entering dwelling and commit indictable offence (6 May 2011);
· Entering dwelling and commit indictable offence (7 May 2011);
· Possession of a knife in a public place (7 May 2011);
· Deprivation of liberty (7 May 2011);
· Assault occasioning bodily harm (7 May 2011);
· Two counts of Assault or obstruct police (7 May 2011); and
· Assault with intent to rape (7 May 2011).
The factual background
It is alleged that on 6 May 2011, Mr O’Malley broke into a granny flat occupied by the 20-year-old complainant and that he stole food, jewellery, alcohol, women’s underwear and dresses, photos, a mobile phone and other electronic equipment. When he left, Mr O’Malley left the television blaring and all the lights on.
The next morning, whilst the complainant was waiting for police fingerprint officers to arrive, Mr O’Malley walked into the flat armed with a kitchen knife. He placed his hand over the complainant’s mouth, held the knife to her throat, lifted her off the couch and attempted to remove her jeans. He then tried to pull her into a nearby bedroom. The complainant was clearly terrified and sustained cuts to her mouth and lip. She managed, however, to kick Mr O’Malley in the groin and struggled free. She escaped into the street with Mr O’Malley chasing her with the knife. Neighbours called police and then pursued Mr O’Malley. When apprehended by police later that morning, he was still brandishing the knife and threatened police saying to them “I haven’t done anything, I haven’t done anything”. As he was arrested, he lashed out at police and injured them.
At the time he was arrested Mr O’Malley was wearing a stolen necklace and other items of the complainant’s jewellery were in his pockets. Police also documented the fact that he was rambling and incoherent when he was arrested and was unable to be interviewed due to his state of mind.
In the watch house he was observed to be masturbating and drinking from the toilet bowl. The watch house records for 9 May 2011 record that he was thought to be clearly thought disordered.
Mr O’Malley was ultimately admitted to the High Secure Unit at The Park Centre for Mental Health on 21 June 2011 where he was treated pursuant to an involuntary treatment order.
Forensic History
Mr O’Malley has a nine page Queensland criminal history involving offences going back to 1969 when he was 9 years of age. Most of those offences involved stealing, breaking and entering, unlawful use of a motor vehicle, obscene language and driving offences.
I note that Mr O’Malley has no previous sexual offences on his criminal history and no previous rape offences.
I also note that the last offences prior to the current offences are alleged to have occurred in 1999 and involved the possession of dangerous drugs.
On 7 June 1999, Mr O’Malley was found to be of unsound mind in relation to charges of stealing on 23 January 1999 and placed on a Forensic Order. Prior to his arrest on 7 May 2011, Mr O’Malley had not been in a psychiatric hospital for two years and had not been in jail for more than eight years. Mr O’Malley had ceased using methylamphetamine about six years before his arrest and cannabis about four years before his arrest.
The Forensic Order was revoked by the Mental Health Review Tribunal on 15 February 2011 as he was considered to have progressed to a stage where it was no longer required, given his compliance with medication and the fact that there has been no further offending in the eight year period.
History of mental illness
It is clear that Mr O’Malley has a long history of documented mental illness since at least 1976. His files occupy some 17 boxes.
The reports of Drs Simon Burton and Pamela van de Hoef, as well as the advice of the assisting psychiatrists, indicate that the most likely diagnosis is that of schizophrenia, although he has had other diagnoses over the years. Irrespective of the actual diagnosis, there is no doubt that Mr O’Malley has had a significant 35-year history of mental illness. This mental illness has been severe and enduring and he has had many psychotic episodes associated with manic symptoms. His mental illness is the also associated with persecutory delusions, sexual disinhibition and impaired judgment.
Shortly after the Forensic Order was revoked however, Mr O’Malley began to rapidly deteriorate and his mother contacted Mental Health Services on several occasions prior to the commission of these offences, concerned about his mental state. It is clear from the material that his chronic schizophrenic illness was obviously returning. He was observed by the psychiatrist and mental health workers to be irritable with pressured and loud speech. A readmission to hospital was being considered at the time he offended, as he lost contact with Mental Health Service in March and April 2011. When his psychiatrist reviewed him in mid-April, he considered he was ‘odd’ with mild pressure of speech. On 20 April, when assessed by his psychiatrist, he was considered to be “unwell”. However, it was clear he was compliant with medication and he denied any illicit drug use. A urine drug screen was negative and the psychiatrist made an appointment for three weeks with a plan to admit him if he was no better. His case workers could not find him for the next two weeks, but had brief telephone contact in early May and no problems were apparent.
There is no doubt, however, that during this period Mr O’Malley developed another acute episode of his chronic relapsing illness and in early March 2011 was becoming quite unwell. There is no evidence that he was using any illicit substances at that time. There is concern, however, that he may have only been partially compliant with medication.
Was Mr O’Malley suffering from a mental illness at the time?
As noted previously, Mr O’Malley was observed to be incoherent and rambling on his arrest and he was formally assessed in the watch house on 9 May. He was considered to be very elevated, hostile, psychomotor agitated with a flight of ideas and delusional ideas as well. It is also clear that he was sexually disinhibited. After he was transferred to the High Security Inpatient Service in June, Mr O’Malley took some three weeks to settle.
In my view, therefore, it is clear that at the time of the commission of the alleged offences, Mr O’Malley was experiencing an acute episode of his relapsing psychotic illness, namely schizophrenia. I consider therefore that he was clearly suffering from a mental illness at the time of all the alleged offences. In my view the psychotic illness was clearly in evidence prior to the break in on 6 May 2011.
Was Mr O’Malley of unsound mind at the time?
The real question, however, is whether Mr O’Malley was deprived of any of the relevant capacities at the time of the alleged commission of these offences such that he could be considered to be of unsound mind. Section 27 Of the Criminal Code Act 2000 (Qld) provides as follows:
27 Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.
In this regard I note that Dr Burton does not consider that Mr O’Malley was deprived of any of the relevant capacities. Dr Burton is willing to concede that Mr O’Malley was clearly psychotic and was becoming progressively unwell in March, April and May of 2011. He considered that Mr O’Malley was definitely losing contact with reality and was clearly psychotic at the time. Whilst Dr Burton acknowledges that Mr O’Malley may have had ‘impaired’ capacity due to his mental illness, he does not consider he was fully ‘deprived’ of any of the capacities.
Mr O’Malley admitted to both psychiatrists that he had been drinking wine on the evening of 6 May and he had been inhaling petrol throughout the night. He also states he had been abusing Amitriptyline in the weeks leading up to the index offences. I note however in this regard that there was no objective evidence of the use of any substances. I also note that there was a negative urine drug screen in April and a further negative urine drug screen after his admission.
All the psychiatrists acknowledge that Mr O’Malley’s psychosis and his possible use of substances at the time would definitely have affected his ability to lay down memories as well as his recall of the events in question. In particular, I note the evidence that he was compressing the time period over which the events occurred. Accordingly, whilst I note that he told Dr Burton some two to three months after the offences were alleged to have occurred that he could remember his mental state changing on the night of 6 May whilst inhaling petrol, I consider this to be highly unlikely. It is clear that he has given inconsistent accounts of his memories throughout the entire period and has given inconsistent accounts of his actions. In my view his memory would clearly have been affected by the psychotic episode and the medication.
It is also clear from the material that Mr O’Malley’s state of mind on 6 and 7 May 2011 was obviously floridly psychotic. In particular, he took women’s dresses and underwear from the flat and was wearing women’s jewellery when he was arrested. He explained to police and to the reporting psychiatrists that he was experiencing what he called “ESP” as he believed the complainant wanted to have sex with him. He took a knife with him essentially to ensure the young lady submitted to sex but he also indicated he believed he could sweet talk her after the event.
I note Dr Burton’s view that at the relevant times Mr O’Malley was not deprived of any of the relevant capacities. In this regard he based his opinion on Mr O’Malley’s account of the offences and the information from the QP9’s. In Dr Burton’s view, Mr O’Malley clearly intended to enter the units to gain the goods on 6 May as he was hungry and had run out of money. He told Dr Burton that he knew this was wrong. I note, however, that this acknowledgment of the ‘wrongness’ of his actions was months after the offences occurred. Dr Burton considered that on 7 May he planned his attempted sexual contact with the victim, took a knife to threaten her and again stated that he knew it was wrong. He also stated to Dr Burton he did not feel compelled or forced to do so.
Dr Burton also noted the voluntary intoxication with petrol fumes prior to the offences on 7 May. Accordingly, Dr Burton considered his mental illness impaired his capacity to control his actions but did not fully deprive him of any capacity.
I note Dr van de Hoef’s report and her extensive evidence. I also note the advice of the assisting psychiatrists who have advised me to prefer the advice of Dr van de Hoef. Dr van de Hoef undertook a very thorough and close examination of all of Mr O’Malley’s hospital records. She considered that at the time of the commission of all of the alleged offences Mr O’Malley was suffering from a severe brittle chronic schizophrenic illness and that, in the weeks before the events, the discontinuance of the forensic order may have been an unsettling influence. She stated:
“I think there is abundant, clear evidence that Norman O’Malley suffers form a chronic psychotic illness with very prominent affective features (usually manic symptoms and signs). I think the most likely diagnosis is Dr Matchett’s, Dr James’ and Dr Fama’s-chronic paranoid Schizophrenia.
His severe illness had its onset in his mid-teens, and despite periods of relative remission (such as when I saw him), has continued to afflict him ever since. Both the diagnosis and his illness have been significantly complicated by chronic severe Substance Abuse and Dependence (principally of amphetamines, which cause manic and psychotic symptoms during periods of intoxication, but also of cannabis, alcohol, solvents, and a variety of prescription drugs) his Antisocial Personality Disorder, and his lifelong impulsivity and recklessness (perhaps linked to his low average intelligence).
His amphetamine abuse ceased 6 years ago, and cannabis abuse 4 years ago, remarkably, on his own undertaking. His psychotic illness has clearly persisted nonetheless, though it has been less severe and more manageable, in the community. I think his history and presentation indicates he has chronic symptoms, with frequent, often sudden onset episodes of florid psychosis (delusions, hallucinations, delusions of reference) and elevated mood, with marked disinhibition, irritability, and aggression. His insight is at best only partial; at times when he has been most unwell, it seems to virtually evaporate. In other words, I suspect he is rarely the best judge of his state of mental health at any time, because of his lack of insight, as well as a limited ability for introspection.
It is clear that all the mental health professionals detected worrying signs of deterioration, namely re-emerging psychosis and mania, and consideration had actively been given to his readmission before the events occurred. Dr van de Hoef noted that there is no objective evidence that he in fact used illicit substances. However, as Dr van de Hoef noted, his compliance with his medication probably worsened, due to his illness:
“I think Dr Al-Sudani, the case manager, the Open Minds and Mrs O'Malley all correctly detected worrying signs of deterioration (i.e. re-emerging psychosis and mania) in the aftermath of the revocation, and consideration was given to readmission (and reinstatement of an ITO) before the commission of the offences. I suspect his compliance worsened, and abuse of oral medications occurred in the interim. There is no evidence he abused illicit substances in the interim.”
Whilst Mr O’Malley reports that he had consumed alcohol and sniffed petrol during the night, he was, in my view, already independently psychotic before he took those substances.
I agree with Dr van de Hoef that he was already psychotic and manic and severely so. I also consider that he would have been deprived of his capacity to know he ought not do the offences. I agree with Dr van de Hoef that, at the time, Mr O’Malley was on a chronic trajectory of his manic illness and that this episode of offending occurred in the context of a documented and pre-existing schizophrenic exacerbation.
In particular, I note Dr van de Hoef’s observation that he was not only manic and psychotic in the watch house but that he was manic and psychotic in high secure for many weeks after his admission. Dr van de Hoef considered that at the time she wrote her report in November 2011, some six months after the offences, he still had some residual symptoms.
Whilst I accept that Mr O’Malley may well have lied to police when he was arrested, given his 35-year-plus history of criminal behaviour it is not surprising that when he was arrested he immediately denied any responsibility.
In relation to the submission that Mr O’Malley was aware that his actions were wrong, in my view any admissions he made months after the event regarding his state of mind at the time were clearly reconstructions given the psychotic state he was in at the time. Given he was floridly psychotic, I do not accept that he could lay down accurate memories. I consider that the episode began months before. I also note Mr O’Malley’s chronic formal thought disorder at the time, in particular his truncating of time. I also note his contradictory reports for many months and the particularly bizarre presentation and the nature of his behaviour. He has a well documented delusional belief system.
Accordingly, I am satisfied on the balance of probabilities that Mr O’Malley was of unsound mind at the time of the alleged commission of all of the offences. Whilst I agree that there was some vestige of control during the commission of the offences, I am satisfied that because of the state of his psychotic illness he was unable to reason with a moderate degree of sense and composure about his actions in a moral sense. I consider his psychosis alone deprived him of that capacity. In particular, I am satisfied that that psychosis was already in existence at the time he committed the offences and was driving his offending behaviour.
I note that there is no objective evidence of his intoxication and that no petrol-soaked rags were found at Mr O’Malley’s residence. The only evidence of intoxication is Mr O’Malley’s self-report. I also note that Mr O’Malley does not wish to be on a Forensic Order and he advised the court that he has had a long history of institutionalisation and resents having his freedom taken away from him. In my view, even if Mr O’Malley did in fact consume the substances as he alleges, I consider that he was already deprived of capacity by reason of his illness alone by that time.
Is a Forensic Order Required?
Section 288 provides as follows:
“88 Mental Health Court may make forensic order
(1)This section applies if, on a reference, the Mental Health Court decides a person charged with an indictable offence—
(a)was of unsound mind when the alleged offence was committed; or
(b) is unfit for trial for the alleged offence and the unfitness for trial is of a permanent nature; or
(c)is unfit for trial for the alleged offence and the unfitness for trial is not of a permanent nature.
(2)The court may make an order in accordance with this division (a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(a) or (b) that the person be detained for involuntary treatment or care.
(3) The court must make an order in accordance with this division (also a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(c) that the person be detained for involuntary treatment or care.
(4)In deciding whether to make an order under subsection (2), the court must have regard to the following—
(a) the seriousness of the offence;
(b) the person’s treatment or care needs;
(c) the protection of the community.
Dr van de Hoef and the assisting psychiatrists all consider that a Forensic Order is required. Dr van de Hoef noted:
“Norman O'Malley requires lifelong treatment for his severe, brittle, chronic psychotic illness, case management and follow up (with regular psychiatric assessments), and likely UDS (which will not detect solvents).
I would support his future treatment being subject to a Forensic Order, given the extreme severity and chronicity of his illness, his extreme irritability and aggression when most unwell, his insightlessness, his history of noncompliance and absconding, and the risk he poses to others when most unwell.
I think he would benefit from inpatient treatment and rehabilitation prior to return to the community and community MHS follow up, to improve on the gains he has already made in psychosocial functioning, his understanding of his illness and its relation to substance abuse, and to clarify both his accommodation and Project 300 status, and his family supports, which appear under a great deal of strain. His mother is and always has been his main support, but now she is elderly, and less available. A Non Contact Order with respect to the victim is also likely to be an issue.”
I am therefore also satisfied that a Forensic Order is required given the seriousness of the offences, the protection of the community and Mr O’Malley’s treatment needs. I consider that the only way that Mr O’Malley’s compliance with medication can be assured is by a Forensic Order.
In the circumstances, I consider that there should be a Forensic Order to The Park Medium Secure Mental Health Service and that at this point in time, whilst limited community treatment is approved, it should be confined to escorted on ground leave. The Forensic Order should otherwise be in the terms of the draft which has been submitted by the Director of Mental Health.
I also consider that an order pursuant to s 292 is appropriate in the circumstances and that there should be an order that a correctional officer escort Mr O’Malley to The Park Authorised Mental Health Service.
ORDERS:
1. That the defendant was of unsound mind at the time of the commission of the offences;
2. Pursuant to s 288 of the Mental Health Act 2000 (Qld) a Forensic Order be made and the defendant be detained at The Park Centre for Mental Health Authorised Mental Health Service; and
3. Limited Community Treatment is approved to commence immediately, subject to the discretion of the authorised psychiatrist, on the conditions set out in the draft submission received from the Director of Mental Health, as follows:
(a) That the patient complies with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
(b) That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; and
(c) That the patient complies with the directions of the nominated staff member/s for the duration of the limited community treatment.
4. Pursuant to s 292 of the Mental Health Act 2000 (Qld) that a correctional officer escort the patient to the Park Centre for Mental Health Authorised Mental Health Service;
5. That the patient not contact the complainant.
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