Re PVM

[2013] QMHC 2

MENTAL HEALTH COURT

CITATION:

Re PVM [2013] QMHC 2

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL FOR QUEENSLAND
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by Election

PVM

Respondent

PROCEEDING NO:

No 293 of 2012

DELIVERED ON:

Ex tempore reasons delivered on 9 May 2013

Written reasons delivered on 15 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J Sundin

FINDINGS AND ORDERS:

1. The appeal is allowed.

2. The decision of the Mental Health Review Tribunal dated 10 October 2012 is set aside.

3. The Forensic Order dated 26 November 2001 is revoked.

CATCHWORDS:

MENTAL HEALTH – APPEAL AND NEW TRIAL –  APPEAL BY WAY OF REHEARING – where Attorney-General appealed a decision of the Mental Health Review Tribunal confirming a Forensic Order and approving the respondent’s application to move out of Queensland – where the respondent was subject to a Community Treatment Order to ensure compliance with treatment – whether the Tribunal should have been satisfied that the respondent represented an unacceptable risk to the safety of the respondent or others – whether the Tribunal should have made a decision to allow the respondent to move out of Queensland

Mental Health Act 2000 (Qld), ss 173, 203, 204

COUNSEL:

B McMillan for the Attorney-General
J Tate for the Director of Mental Health
K Williams for the Respondent

SOLICITORS:

Crown Law for the Attorney-General
Crown Law for the Director of Mental Health
Queensland Advocacy Incorporated for the Respondent

A LYONS J:

This Appeal

1. This is an appeal by the Attorney General against the decision of the Mental Health Review Tribunal (MHRT) on 10 October 2012 in relation to PVM. On that date the MHRT confirmed the existing Forensic Order with Limited Community Treatment and approved the application to move out of Queensland by PVM.  On 9 May 2013 I made the orders set out above and gave short reasons.  I indicated that I would publish more extensive reasons in due course.  These are those reasons.

Background

1. PVM was placed on the current Forensic Order on 26 November 2001. He has a current diagnosis of chronic, treatment resistant, paranoid schizophrenia as well as a co-morbid polysubstance abuse disorder which is said to be in remission.

1. PVM was previously placed on a Forensic Order in 1995. PVM was admitted to the Gold Coast Hospital between 1 September 2007 and 14 September 2007 due to non compliance with treatment and a return to amphetamine use. He was discharged to the Community Health Service, but on 7 December 2007 the Director of Mental Health was advised that PVM was absent without permission from the Gold Coast Authorised Mental Health Service.

1. The paperwork to facilitate his return, namely an Authority to Return under ss 507 and 508 of the Mental Health Act 2000 (Qld) (the Act), was consequently forwarded to the Queensland Police Service on 7 December 2007. At the time he left Queensland, PVM had a number of outstanding charges from 2006 and 2007 which were then suspended under Chapter 7 Part 2 of the Act.

1. PVM initially went to South Australia and on 1 April 2008 was admitted as an inpatient to a hospital in South Australia. There is no interstate agreement with South Australia in place and accordingly an interstate apprehension order was not issued, but the Authority to Return issued on 7 December 2007 remained in place.

1. On 22 April 2008, the MHRT revoked PVM’s Limited Community Treatment. The MHRT subsequently reviewed PVM’s Forensic Order at six monthly intervals from 21 October 2008 until 14 April 2010. On each occasion, the Forensic Order was confirmed and no Limited Community Treatment was approved.

1. On 12 October 2010 the Director of Mental Health was advised by the Gold Coast District Forensic Liaison Officer that PVM was residing in Victoria and the information from PVM’s case manager at the North West Mental Health Service in Victoria indicated that he was currently regulated and case managed by that service in Victoria. The advice indicated that he was on a Community Treatment Order (CTO), was receiving depot Zuclopenthixol, was in stable accommodation and had had no admissions since December 2008, two years previously. The letter also indicated that he was under the Public Trustee of Victoria. The case manager indicated that should PVM return to Queensland, he would not have support or access to accommodation.

1. On 13 October 2010 at the MHRT review hearing, the MHRT determined that the hearing could be adjourned to obtain an examination and a report in relation to PVM. The hearing was then adjourned for three months.

1. On 11 January 2011, the MHRT revoked PVM’s Forensic Order. Accordingly, the Authority to Return dated 7 December 2007 was recalled which meant that the outstanding charges from 2006 and 2007 were no longer suspended.

1. The Attorney-General appealed that decision and on 14 July 2011 the Mental Health Court set aside the decision of the MHRT of 11 January 2011. The Forensic Order was reinstated and the Authority to Return was reissued by the Gold Coast Authorised Mental Health Service.

1. On 25 August 2011, the Director of Mental Health recommenced proceedings in relation to PVM’s outstanding charges from 2006 and 2007. Those charges related to three counts of possession of dangerous drugs, one count of assaulting and obstructing police, one count of begging for money in a public place, one count of driving without a licence and one count of entering a dwelling with intent.

1. On 14 November 2011, Dr Alexander travelled to Victoria to review PVM for the purposes of completing a s 238 report for the outstanding charges. PVM attended the interview with Dr Alexander with his mother and case manager.

1. On 28 November 2011, the Director of Mental Health received from Dr Alexander his report which indicated that PVM was not of unsound mind and was fit for trial. The report also advised that PVM continued to attend an outpatient clinic in Victoria for follow up and his support network was in Victoria. The report noted that he was on a Disability Support Pension and managed by the Public Trustee. He had good contact with his family and spent time with his mother. He was seen by a psychiatrist every four weeks and his case manager every two weeks. The report indicated he was engaged with Mental Health Services in Victoria.

1. On 1 December 2011, the Director of Mental Health referred the matter to the Director of Public Prosecutions (DPP) recommending that the charges be discontinued. The DPP subsequently advised that the charges would not be discontinued.

1. On 9 July 2012, an application was made by the Gold Coast District Forensic Liaison Officer on behalf of PVM for approval for him to move out of Queensland. That application was approved by the MHRT on 10 October 2012 and is the decision under appeal.

1. On 18 December 2012, the Attorney-General appealed that decision and on 27 January 2013, the Attorney-General amended the appeal to include a stay of decision application and a request for a Court Examination Order (CEO).

1. The original grounds of appeal indicate that, in relation to the decision to approve PVM’s application to move out of Queensland, at the time that application was made the patient was absent from his Authorised Mental Health Service without permission and had been absent since December 2007. It was noted that PVM was residing and receiving treatment in Victoria.

1. The basis of the appeal is that, in approving the application to move out of Queensland, the MHRT allowed PVM to bypass the procedures required under the Act. The relevant provisions of the Act require that a forensic patient may only move out of Queensland with prior approval and that a patient absent without permission is returned to the Authorised Mental Health Service under an Authority to Return. Accordingly, the Attorney-General argues that, on the material that was before it, the MHRT should not have been satisfied that appropriate arrangements existed for PVM’s treatment in Victoria.

1. In relation to the decision to approve Limited Community Treatment, it was argued that in a situation where the patient’s application to move out of Queensland should not have been approved, Limited Community Treatment should not have been approved either. It was also argued that on the basis of the material before it, the MHRT could not have been satisfied that Limited Community Treatment did not pose an unacceptable risk to the community, having regard to PVM’s continuing drug use, his superficial engagement with treatment, his failure to engage in case management and the ongoing presence of psychotic symptoms including paranoid thoughts, grandiose beliefs and thought disorder.

1. On 27 January 2013 the Attorney General amended the grounds of appeal and sought a stay of the decision appealed against. On 6 February 2013 this Court determined that a stay was not necessary in order to secure the effectiveness of the appeal. The Court, however, ordered that PVM was required to submit to a CEO by a forensic psychiatrist. Dr Heffernan subsequently travelled to Victoria for the purposes of preparing a report for the Court.

Report of Dr Heffernan

1. Dr Heffernan interviewed PVM as well as his mother and case manager on 12 March 2013. Dr Heffernan prepared a report dated 16 March 2013 and concluded that PVM has a chronic psychotic illness which is currently in remission in terms of positive symptoms, but he still experiences negative symptoms of schizophrenia. Dr Heffernan stated that PVM is currently managed in the community in Melbourne on a CTO. Dr Heffernan noted that PVM’s illness has been present for almost two decades and that for much of that time his mental health management has been impacted upon by substance abuse, a lack of continuity of care and social adversity. Dr Heffernan stated that PVM has been relatively stable over the last four years and has not required a hospital admission since 2008.

1. Dr Heffernan stated that the treating team in Victoria have reported that he has not had a significant exacerbation of his illness in the last four years and that his reported substance misuse has significantly declined.  Dr Heffernan considered that he received significant support from his mother and he has gone a long way towards developing a therapeutic alliance with his current treating team. He considered that PVM’s prognosis will improve if he is able to engage in rehabilitation and continue to reduce or maintain abstinence from illicit substances.

1. In terms of risk, Dr Heffernan considered that PVM has a number of historical risk factors and some dynamic risk factors that are statistically associated with an elevated baseline future risk of violence compared to the general community. However, Dr Heffernan considered that in the context of his current mental health management plan, PVM’s immediate risk of violence to others and himself associated with his mental illness was low.

1. Dr Heffernan considered that it is appropriate for PVM to have full Limited Community Treatment under the Act and that PVM does not have any inpatient treatment needs. He considered that PVM’s community treatment needs are being met by his current Mental Health Service with the support of the CEO. Dr Heffernan also considered that PVM’s clinical and risk management needs can be adequately met in Victoria. He stated that PVM regular contact assessment and review by the Mental Health Service. He considered that PVM is developing an improved therapeutic alliance and that the aspects of managing a chronic illness take time and continuity of care. Dr Heffernan considered that there would be a significant deleterious impact on PVM’s mental health if he were required to return to Queensland. He considered that the most important issue is that it would disrupt the significant support PVM receives from his mother. It would also disrupt the continuity of care and the developing therapeutic alliance with his current treating team. He also considered that there would be a dislocation from his current stable accommodation and family and social supports. Dr Heffernan could see no advantage in PVM’s being transferred to Queensland for the continuity of his mental health care.

1. Dr Heffernan also considered the fact that PVM has accrued a number of charges whilst he has been in Victoria. In particular, it would seem that these are minor charges of fare evasion, placing his feet on a seat of a tram and begging which are being dealt with by the Special Circumstances Court.

1. Dr Heffernan stated that the most significant change in PVM’s circumstances since he first went absent without permission in 2007 has been the impact of the support provided by his mother. This has led to a period of improvement, not only in his mental health care but his quality of life.

1. Dr Heffernan stated that the proposed treatment plan over the next six months would involve the continuation of PVM’s CTO together with ongoing, regular psychiatric review, either monthly or bi-monthly, as well as continued case management with fortnightly appointments. PVM currently receives depot Zuclopenthixol medication, as well as enhanced social skills development and vocational rehabilitation.

1. Dr Heffernan considered that it would be counter-therapeutic to remove PVM from Victoria. He also considered that his risk to himself and others was being appropriately managed by the CTO in the context of the supports he currently has in place.

The advice of the assisting psychiatrists

1. Dr McVie noted that PVM has a diagnosis of chronic treatment resistant schizophrenia and that she considers he would not engage with treatment for his mental illness without the current CTO. She noted that PVM has been itinerant in the past and that he was in Queensland from 1999 until 2007 and after that he moved not only to South Australia but to Western Australia and then to Victoria. Dr McVie noted that there are some discrepancies in the information provided to Dr Heffernan by PVM’s mother and by the treating team. In particular, PVM’s mother indicated he had moderated his drug use whereas the treating team noted he was still continuing his drug use. Dr McVie was concerned about the fragility of the CTO which could be easily revoked by a tribunal or by a treating psychiatrist. However, Dr McVie ultimately noted that he had been stable for at least 18 months and she considered that the material indicated he should remain in Victoria. However, Dr McVie considered that the criteria for a Forensic Order were met and that the Forensic Order should be confirmed, but that PVM be allowed to have Limited Community Treatment and reside in Victoria.

1. Dr Sundin, however, disagreed and considered that PVM did not pose a significant risk to himself or others and that the criteria for a Forensic Order were not met. She considered that the Forensic Order should be revoked.

The Legislation

1. It is clear that an appeal to this Court is an appeal by way of rehearing and this Court can make any decision that the MHRT could have made. In deciding the appeal, the Court may confirm or set aside the decision appealed against. It is clear that the Court must not revoke the Forensic Order or approve Limited Community Treatment unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability.

1. The relevant provisions are ss 203 and 204 of the Act. Section 203 sets out the matters the MHRT and hence this Court must consider in determining whether a Forensic Order should be confirmed or revoked.

“203 Decisions on review

(1) On the review, the tribunal must decide to confirm or revoke the forensic order for the patient.

(2) If the tribunal confirms the forensic order, the tribunal may decide to make 1 or more of the following orders—

(a) an order that the patient have limited community treatment subject to the reasonable conditions the tribunal considers appropriate;

(b) an order approving limited community treatment for the patient subject to the reasonable conditions the tribunal considers appropriate;

(c) an order revoking an order or approval for limited community treatment for the patient;

(d) an order that the patient be transferred from one authorised mental health service to another authorised mental health service;

(e) an order that the patient be transferred from an authorised mental health service to the forensic disability service;

(f) an order amending or revoking a monitoring condition included in the patient’s treatment plan under section 131.

(3) Without limiting subsection (2)(a) or (b), an order under the paragraph may be made subject to a condition that the patient must not contact a stated person.

Examples of persons a patient must not contact—

1      a victim of an offence alleged to have been committed by the patient

2      the spouse or a relative or dependant of the patient

(4) In deciding whether to make an order under subsection (2)(a) or (b), the tribunal must consider whether the order should be subject to a condition mentioned in subsection (3).

(5) If 2 or more forensic orders for the patient are being reviewed together, the tribunal must make the same decision for each of the orders.

(5A) For subsection (5), the matters the tribunal must have regard to in making the decision are the matters stated in this section in relation to the most recent forensic order.

(6) In making a decision under subsection (1) or (2) in relation to a patient whose most recent forensic order is not a forensic order (Mental Health Court—Disability), the tribunal must have regard to the following—

(a) the patient’s mental state and psychiatric history;

(b) each offence leading to the patient becoming a forensic patient;

(c) the patient’s social circumstances;

(d) the patient’s response to treatment and willingness to continue treatment.”

“204 Restrictions on review decisions

(1) The tribunal must not do any of the following unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability—

(a) revoke the forensic order for the patient;

(b) order or approve limited community treatment for the patient;

(c) amend or revoke a monitoring condition included in the patient’s treatment plan under section 131.

(2) The tribunal must not revoke the forensic order for the patient if the patient has moved out of Queensland under chapter 5, part 1, division 3 or section 288B, unless—

(a) 2 years has elapsed after the patient’s moving out of Queensland; and

(b) it is satisfied the patient is not likely to move back to Queensland.

(3) The tribunal must not revoke the forensic order for the patient if—

(a) a jury has made a section 613 or 645 finding for the patient or the Mental Health Court has decided the patient is unfit for trial; and

(b) proceedings against the patient for the offence to which the finding or decision relates have not been discontinued under part 4 or chapter 7, part 6.

(4) The tribunal must not order or approve limited community treatment for a patient mentioned in subsection (3) unless it is satisfied there is not an unacceptable risk the patient would, if the treatment were undertaken in the community—

(a) not return to the authorised mental health service when required; or

(b) commit an offence; or

(c) endanger the safety or welfare of the patient or others.”

1. The provisions of the Act which are relevant to an application for approval for a patient to move out of Queensland are set out in s 173 of the Act:

“173 Tribunal’s powers on application

(1)In deciding the application, the tribunal must grant or refuse the application.

(2) However, the tribunal may approve that the patient move out of Queensland only if it is satisfied appropriate arrangements exist for the patient’s treatment or care at the place where the patient is to move.

(3) Also, the tribunal may impose the reasonable conditions on the approval the tribunal considers appropriate.”

1. In coming to a decision in this matter, I have considered the material which was before the MHRT as well as the report of Dr Heffernan. Having considered that material, it is clear that Dr Heffernan’s evidence is that PVM’s risk to himself and others is appropriately managed by the treatment regime which is in place in Victoria under the CTO. I am satisfied that on the basis of Dr Heffernan’s evidence, PVM does not represent an unacceptable risk to himself or others, having regard to his mental illness. In this regard I note that he has been managed on a CTO since 2009 and that he has not had a hospital admission since 2008. I also note that PVM is on a disability support pension and all of his finances are managed by the Public Trustee of Victoria. He is in stable accommodation which is paid for by the Public Trustee of Victoria, is well supported by his mother and is in constant contact with his treating team in Victoria.

1. Having considered the matters set out in ss 203 and 204 of the Act, I am satisfied that having regard to PVM’s current mental state, his psychiatric history, the offences leading to his becoming a forensic patient, together with his current social circumstances and his response to treatment, that PVM does not represent an unacceptable risk to the safety of himself or others having regard to his mental illness.

1. In terms of the determination of this appeal, it would seem to me on an examination of the material before the MHRT there would not have been sufficient evidence to be satisfied about the question of risk given that a thorough risk assessment was not carried out until Dr Heffernan’s assessment in March of this year. I am not satisfied that the matters of risk could have been adequately addressed by the MHRT on the basis of the material that was before it at that time. I am therefore satisfied that the appeal in relation to the revocation of the Forensic Order should be allowed. However, on the basis of the material currently before this Court, the Forensic Order should be revoked given the material which is now in evidence.

1. In terms of whether there should have been a decision to allow PVM to move out of Queensland, I am similarly not satisfied that there was sufficient examination of the issues for such a decision to have been made on 10 October 2012. Those matters have now been thoroughly explored by Dr Heffernan in his report and there is a basis upon which this Court can be satisfied that there are appropriate arrangements in place for PVM’s treatment and care where he is now residing. Accordingly, the appeal is allowed.

1. However, as it is clear that the Forensic Order is revoked, no such permission is now required for PVM to reside interstate and that aspect of the appeal is in that respect redundant.

1. I also note in particular Dr McVie’s advice as to the importance of the CTO in terms of ensuring PVM’s compliance with treatment. Dr McVie’s clear advice is that such an order needs to remain in place at least until he has been stable on the CTO for a much longer period of time.

ORDERS:

1. The appeal is allowed.

2. The decision of the Mental Health Review Tribunal dated 10 October 2012 is set aside.

3. The Forensic Order dated 26 November 2001 is revoked.