Re R

[2008] QMHC 11

MENTAL HEALTH COURT

CITATION:

Re R [2008] QMHC 011

PARTIES:

APPEAL FROM MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL FOR QUEENSLAND
Appellant

R
Respondent

DIRECTOR OF MENTAL HEALTH
Respondent by Election

PROCEEDING:

Proceeding No 0050 of 2008

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2008

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr F Varghese
Dr E N McVie

FINDINGS AND ORDER:

1.   The appeal is allowed; 

2.   The decision of the Tribunal is set aside and the forensic order continued; 

3.   The associated limited community treatment will continue to apply.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where Attorney-General appealed a decision of Mental Health Review Tribunal revoking a Forensic Order – where Tribunal adjourned review hearing of Forensic Order – where Involuntary Treatment Order made after the adjournment – where Tribunal then revoked Forensic Order – where Involuntary Treatment Order subsequently revoked – whether Forensic Order should have been revoked – whether ongoing need for involuntary treatment – whether the Tribunal should have been satisfied that the respondent did not represent an unacceptable risk to the safety of the respondent or others

Re AK [2002] QMHC 003

COUNSEL:

W Isdale for the Attorney-General
J Briggs 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

1. PHILIPPIDES J:  This is an appeal by the Attorney-General against the decision of the Mental Health Review Tribunal of 19 December 2007, revoking a forensic order, in relation to the respondent.

1. The basis of the appeal is that the Tribunal ought not to have been satisfied that the respondent did not represent an unacceptable risk to the safety of herself or others and should not have revoked the patient's forensic order, particularly taking into account the patient's continuing need for involuntary treatment.

1. The forensic order was originally made on 17 June 2004 by the Mental Health Court, in respect of a reference concerning charges that include fraud, and unlawful stalking and wilful damage.  The evidence indicates that the patient suffers from a long standing schizo affective disorder.  Her initial presentation to Mental Health Services was in June 2002, when she was brought to the Gold Coast Hospital Emergency Department, due to delusional beliefs that a police officer was pursuing, harassing and stalking her.

1. The patient was admitted as an involuntary patient in September 2006, because she required further treatment for her delusional beliefs.  She has had intermittent relapses of psychotic symptoms, including persecutory delusions, agitated behaviour, and high levels of distress, occurring in the context of non compliance with medication and cannabis abuse.

1. In its Statement of Reasons, the Tribunal referred to a clinical report that had been provided by the patient's treating psychiatrist, dated 30 November 2007.  The Tribunal noted the report stated in respect of the patient's current mental state assessment, that there were "No persecutory delusions, no formal though disorder, improving insight recognition into symptoms, increased acceptance to treatment, unimpaired judgment".  The Tribunal observed that in terms of risk assessment, the treating psychiatrist had noted intermittent use of cannabis, but that this was significantly reduced compared to past usage and also noted, "partial insight into illness".  The "Risk Management Observations" in the clinical report were also referred to by the Tribunal.  In this regard the clinical report stated:

"Psychotic symptoms well controlled with depot preparation of Risperidone.  Case manager monitoring mental state.  Compliance with Consta and provision of emotional support and problem solving".

1. The clinical report also noted under the heading, "Recent history of limited community treatment" the following:

"In the last five months significant improvement in terms of improved understanding of early warning signs, resolution of psychotic symptoms, maintaining employment and significant reduction of cannabis use.  No adverse incidents while on LCT.  She has engaged well with psychiatrists and new case manager since October 2007".

1. The Tribunal noted the treating psychiatrist’s recommendation that there was no need for the patient to remain under a forensic order.  The Tribunal noted the treating psychiatrist's recommendation was based on the absence of psychotic symptoms in the last five months, the development of insight into the patient's illness and that while the patient continued to used cannabis frequently, it had not impacted on her mental health.

1. The Tribunal also referred to the treating psychiatrist's conclusions in the clinical report that the risks could be managed just as effectively under an involuntary treatment order, community category.  In the clinical report it had in fact, it seems erroneously, been indicated that the treatment criteria for an involuntary treatment order, had not been met.  However, the treating psychiatrist had actually intended to tick the box that indicated that those criteria had been met and it does seem that everyone proceeded on the basis that the indication in the treating psychiatrist's report was that the criteria had been met.

1. The Tribunal referred to risks associated with cannabis use, noted the treating psychiatrist's references to reduced use of cannabis and also noted that the patient's own evidence was that she had ceased cannabis use altogether.  The Tribunal concluded in paragraph 15 of its reasons, in relation to the question of risk, in the following manner:

"In relation to the treating psychiatrist's comments about the application of the treatment criteria and the need for an involuntary treatment order, the Tribunal decided to adjourn the hearing on 12 December, to allow the treating psychiatrist to consider placing the respondent under an involuntary treatment order.  The treating psychiatrist did so on 14 December 2007.  The imposition of an involuntary treatment order in itself of course does not mean that a forensic order can therefore be revoked.  The matter set out in Sections 203 and 204 of the Act must still be taken into account by the Tribunal; nevertheless the imposition of an involuntary treatment order is another factor that can assist the Tribunal in making its assessment of risk".

1. The Tribunal determined that it was satisfied that the forensic order ought to be revoked and that the patient did not pose an unacceptable risk to the safety of herself or others.

1. In my view, the Tribunal ought not to have been so satisfied at the time.  Considering the matter afresh, in accordance with the principles enunciated in Re AK [2002] QMHC 003, that view is certainly reinforced by what this Court has heard by way of evidence.

1. I note that just some months before the clinical report of 30 November 2007, upon which the Tribunal primarily depended, the treating psychiatrist had provided another clinical report (on 25 June 2007) which was used by the Tribunal to maintain the forensic order.  In the 25 June 2007 report, the treating psychiatrist referred to the fact that the patient had no insight into her delusional disorder, that her judgment had been so impaired that the treating team were receiving constant complaints from neighbours and the police regarding her making ongoing phone calls to the police and allegations that her neighbours were harassing her and that the patient had become so disturbed that she had set up video security around her property.

1. I note that the view of the treating psychiatrist in her clinical report of 30 November 2007 was that the patient still required involuntary treatment.  Indeed, the treating psychiatrist supported the making of the involuntary treatment order on 14 December 2007 and completed documentation in that respect.

1. The approach revealed by the treating psychiatrist in her report of the 30 November 2007, upon which the Tribunal relied and indeed the approach reflected in the Tribunal's own thinking, was to my mind flawed, because it failed to appreciate the fragility of an involuntary treatment order.  In particular, it failed to have any regard or give consideration to the fact that the continuation of the involuntary treatment order made on 14 December 2007 depended upon the ongoing satisfaction of the treatment criteria.  The fragility of that situation as a means of ensuring treatment, was underscored by the fact that, not long thereafter, the Tribunal felt unable on 9 July 2008 to continue the involuntary treatment order, notwithstanding that the treating psychiatrist herself then recommended that the involuntary treatment order be continued. 

1. That outcome reveals precisely the difficulty with resorting to an involuntary treatment order as an alternate to a forensic order in situations such as the present.  The treating psychiatrist indicated to this Court that her concern was that the patient, who at the time of the Tribunal's decision was on depot medication, has only recently been placed on oral medication and still uses cannabis, contrary to the understanding the Tribunal had in December 2007, when it made its decision, and that there were doubts as to the patient's ongoing compliance if she did not have a regime that permitted involuntary treatment.  Now a forensic order permits such involuntary treatment to be maintained, even where all the treatment criteria for an involuntary treatment order are not met, because the relevant test to be considered is different. 

1. I note Dr Kingswell's views expressed in his report, concerning the issue of whether a forensic order is required, but Dr Kingswell was unaware of the making of the Involuntary Treatment Order and the circumstances of its being made and indeed, was unaware of much of the more recent concerns that the treating psychiatrist expressed to this Court.

1. I also note the recommendation and advice provided by the assisting psychiatrists, that the patient's needs and the consequences of falling out of treatment are such that a forensic order is required to be continued.

1. In my view, both the circumstances that were present at the time the Tribunal made its decision and those that are indicated to the Court now are such that it cannot be said that the patient does not represent an unacceptable risk to the safety of herself or others if the forensic order is revoked.

1. I would express very grave concerns about the approach of suspending review proceedings to place a patient on an involuntary treatment order, in circumstances where the clinical opinion is that the patient continues to require involuntary treatment.  That thinking is, for the reasons that I have indicated, flawed and likely to result in the difficulties that arose in the present case, where the treating psychiatrist is recommending a continuation of involuntary treatment, but the Tribunal is not satisfied that all the criteria continue to apply to permit its maintenance.  As I mentioned, the considerations are quite different in relation to the continuing of a forensic order as opposed to an involuntary treatment order.  Those differences must be borne in mind very clearly by the Tribunal and also by those reporting to the Tribunal in relation to reviews of forensic orders.

1. The appeal is allowed.  The decision of the Tribunal is set aside and I order that the forensic order be continued.  Of course the forensic order has attached to it limited community treatment and that limited community treatment is approved and will continue to apply.