Re PNE

[2010] QMHC 24

MENTAL HEALTH COURT

CITATION:

Re PNE [2010] QMHC 024

PARTIES:

APPEAL FROM THE MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL FOR QUEENSLAND
Appellant

PNE

Respondent

DIRECTOR OF MENTAL HEALTH

Respondent by election

PROCEEDING:

No 288 of 2009

DELIVERED ON:

7 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2010

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J N Chalk
Dr J M Lawrence

FINDINGS AND ORDER:

That the appeal is allowed to the extent that condition 1(d) of the conditions approved on the 8th of January 2010 is set aside and in lieu a new condition 1(d) is to be inserted in accordance with the submission from the Attorney-General.1.   

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where Attorney-General appeals decision of the Mental Health Review Tribunal confirming forensic order and approving limited community treatment – where the Tribunal previously approved unescorted off ground leave to up to 20 hours per week on a staged and graduated basis – where Tribunal later approved unescorted daytime absences from the authorised Mental Health Service – where Attorney-General appeals the limited community treatment condition providing for full unescorted day leave – where respondent had accessed fewer hours of leave than was provided for under the limited community treatment condition – where expert psychiatric opinion suggested a need for a graduated progression of leave – whether the limited community treatment condition appealed by the Attorney-General ought to be set aside

COUNSEL:

B McMillan for the appellant
K Prskalo for the respondent

D Lang for the Director of Mental Health

SOLICITORS:

Crown Law for the Attorney-General
Legal Aid Queensland for the respondent
Crown Law for the Director of Mental Health

PHILIPPIDES J:

1. This is an appeal brought by the Attorney‑General against the decision of the Mental Health Review Tribunal of 8 January 2010.

1. I should note that there was an appeal, also previously brought, against the decision of the Tribunal of 16 September 2009 and that that appeal was dismissed.

1. In relation to the decision of January 2010 a stay of that decision was granted in February 2010.  The only focus of the appeal relates to condition 1(d) of the LCT conditions, which provides unescorted daytime absences from the authorised Mental Health Service for planned and structured rehabilitation activities approved by the treating team.  Previously condition 1(d) provided for up to 20 hours per week of unescorted daytime absences.  I will speak about that in a little more detail shortly. 

1. I note that the uncontradicted clinical evidence is to the effect that unescorted LCT ought to be approved in a staged and graduated fashion.  Indeed, recognising the united nature of the clinical opinion to that effect counsel for the appellant properly conceded that some unescorted LCT should be approved.  The real question of the appeal concerns the extent to which unescorted off the grounds LCT should be approved.

1. I note that the Tribunal had granted up to five hours twice weekly of unescorted off ground leave in February 2008 on certain conditions and that in February 2009 that leave was extended to up to six hours.  There was subsequently a modification of the terms of LCT but until September 2009 the extent of off the grounds unescorted LCT approved remained up to six hours per week.

1. Nevertheless, it is apparent from the material that the extent of leave actually accessed and utilised was considerably less than what had been approved.  That pattern was repeated with subsequent extensions of LCT. (As I have mentioned, the Tribunal in September 2009 extended the approval of unescorted off ground leave to up to 20 hours per week on a staged and graduated basis and in January of 2010 it allowed full unescorted day leave).

1. It is apparent that, notwithstanding that from February 2009 to September 2009, there was approval for up to six hours of unescorted off ground leave, considerably fewer hours were accessed, except on a very limited number of occasions.  Likewise, in relation to the period from September 2009 to January 2010, notwithstanding that approval had been granted for up to 20 hours of LCT per week of unescorted off ground leave, considerably fewer hours were accessed and, from the material available, it seems that an average of 13 and a quarter hours per week was accessed in the period from 15 January until the stay was granted.

1. It seems that the increase in the off ground unescorted LCT that was utilised in the period leading up to the stay being granted was aimed at accommodating a goal of the patient pursuing a TAFE course.

1. I note that Dr Sullivan, who provided an independent report, when asked about the appropriateness of that TAFE course as a goal for the rehabilitation being pursued in the lead-up to the stay imposed gave the following opinion:

“My sense is that the leave plan appears ambitious and I think that the main factor in that is not the proposed amount of leave, but [the respondent’s] anxiety about utilising that leave.  I think she’s spent a significant amount of time in a secure institution.  I think she’s very under-confident about her ability to manage those tasks.  I think she’s surprised when she actually finds that she can do those tasks.  In some senses the problem is not that the plan is too ambitious, but that the patient is too under-ambitious and certainly I would say that [the respondent] falls into the category of people that I would regard as requiring a degree of support to move on rather than me to be braked or held back from her plans.”

1. In relation to the following proposition put to Dr Sullivan by Dr Chalk, “So it would not be to her detriment to get some parameters or some limits on a six monthly period for her to achieve and to work towards, bearing in mind her anxiety,” Dr Sullivan agreed and he made the observation that the approach to leave was somewhat like a game of snakes and ladders, which had very long snakes and very short ladders and emphasised the need for - to quote his words – “a very graduated progress forward.”

1. The advice from the assisting psychiatrists, bearing in mind all the material and it is very extensive which has been placed before the Court, is that the approval of unescorted off the ground LCT, which is unrestricted in terms of duration, is too ambitious and does place unacceptable risks in the circumstances of this case.

1. I accept that advice and I do so bearing in mind that there has been a history for various reasons of the patient under-utilising leave that has been approved.  I note in this regard Dr Morris’s observations, on a number of occasions now, that suggest under-confidence by the patient which accords with the view offered by Dr Sullivan.  And I also note Dr Morris’s references to anxiety by the patient to ensure that she remains within the parameters of her leave.

1. It seems to me that the course suggested by the counsel for the Attorney, which is to proceed in a staged and graduated fashion, with unescorted daytime absences of up to ten hours per week for rehabilitative purposes for a period progressed thereafter up to a maximum of 20 hours per week, at the discretion of the treating psychiatrist, does provide appropriate parameters to take into account considerations of risk that are present in this case.  That accords with the advice of the assisting psychiatrists.

1. I think that that proposal would ensure that the patient is not exposed to undue pressure or expectations of others to achieve particular milestones and goals.  I also note the advice of both of the assisting psychiatrists that an appropriate way forward would be to proceed for a period of three months or so in relation to leave of up to ten hours with the further increase to 20 hours being achieved over a six month period.

1. That seems to me to be a very sound proposal and is in line with the opinion put forward quite some time ago by Dr Tai in July 2008.  I note in his report he emphasised the need to progress cautiously with a heavily structured leave plan and a staged, graduated fashion.

1. The removal of any parameters, and in particular the parameters that existed as at the 16th of September 2009, of up to 20 hours per week being imposed, is to my mind not in accordance with the need to ensure that there is no unacceptable risk.

1. Accordingly, the appeal is allowed to the extent that condition 1(d) of the conditions approved on the 8th of January 2010, is set aside and in lieu a new condition 1(d) is to be inserted in accordance with the submission from the Attorney-General.

1. I have indicated, in accordance with the advice from the assisting psychiatrists, that the leave provided for, of up to ten hours and up to 20 hours ought to be progressed over a six month period.  I do not consider it necessary to specify that in the new condition 1(d).  Of course, the treating team will have the benefit of a transcript in relation to that issue.

1. I would expect, in due course, that the Tribunal will consider the matter and it would be very pertinent for the Tribunal to have regard to how leave has progressed in the six month period from the date of the Court’s decision.