Re RA
[2007] QMHC 21
•16 November 2007
MENTAL HEALTH COURT
CITATION: | Re RA [2007] QMHC 021 |
PARTIES: | AN APPEAL BY THE APPELLANT’S LEGAL REPRESENTAIVE AGAINST A DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL |
PROCEEDING NO: | No 0152 of 2007 |
DELIVERED ON: | 16 November 2007 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 16 November 2007 |
JUDGE: | Philippides J |
ASSISTING PSYCHIATRISTS: | Dr J M Lawrence |
FINDINGS AND ORDERS: | 1. Appeal allowed. 2. The decision of the Mental Health Review Tribunal dated 11 May 2007 is set aside. 3. The appellant is unfit for trial ant that unfitness is of a permanent nature. |
CATCHWORDS: | MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where the Mental Health Review Tribunal initially found the appellant to be of unsound mind in relation to two charges of assault occasioning bodily harm but to be temporarily unfit for trial – where the Tribunal reviewed the appellant’s fitness for trial on several occasions and continued to find him unfit for trial – where the Tribunal, on its last review of the appellant, found him fit for trial – where evidence indicated that the appellant’s mental state had not varied greatly since he was found unfit for trial – where expert evidence provided that the appellant is permanently unfit for trial – whether the Tribunal erred in its finding that the appellant was fit for trial – whether the appellant is permanently unfit for trial R v Presser [1958] ALR 248 |
COUNSEL: | J Farmer for the appellant J Tate for The Director of Mental Health |
SOLICITORS: | Legal Aid Queensland for the appellant Crown Law for The Director of Mental Health |
PHILIPPIDES J: This is an appeal against the decision of the Mental Health Review Tribunal of 11 May 2007 finding the appellant fit for trial.
The background to the matter is that on 18 June 2004, the Mental Health Court heard a reference in relation to two charges of assault occasioning bodily harm in relation to the appellant. The offences were alleged to have occurred on 26 November 2002 and 9 April 2004, and involved assaults against nursing staff.
The Court found the appellant not to be of unsound mind at the time of the alleged offences, but to be unfit for trial, and found that the unfitness was not of a permanent nature. A forensic order was made.
The Mental Health Review Tribunal has reviewed the appellant's fitness for trial on several occasions from September 2004 to November 2006, and on each of those occasions found the appellant unfit for trial. However, on the last review, on 11 May 2007, the Tribunal, as I mentioned, found that the appellant was fit for trial. In reaching its decision, the Tribunal considered clinical reports, including reports prepared by Dr Hariharan and approved by Dr Stedman, the appellant's treating psychiatrist.
The appellant has been a patient in the medium-secure unit of the John Oxley Memorial Hospital since about April 2000. His diagnosis, originally one of recurrent drug-induced psychosis, is now seen as one of chronic schizophrenia. As a result, it appears that the appellant has been on an involuntary treatment order for some time now, since the decision of the Tribunal.
Before the Tribunal was a clinical report prepared by Dr Hariharan and approved by Dr Stedman, dated 8 November 2006, which dealt with the issue of fitness for trial. Their report concluded that the appellant was unfit for trial and stated:
"He has a very severe schizophrenic illness. Typically, he is uncommunicative unless he has a pressing need…[the appellant’s] condition is unlikely to change substantially within a reasonable time. We would still request that his fitness for trial be reviewed again."
Subsequently, some slight improvement in the appellant's condition was made upon the appellant being commenced on Clozapine.
A further clinical report as to fitness was provided by the treating team dated 9 May 2007. The treating team confirmed their previous opinion that the appellant was, at that stage, not fit for trial for the same reasons as previously given. The report outlined that the appellant's mental state was not appreciably different to that described in the previous reports; that he was still experiencing symptoms of psychotic illness, and he was describing delusions of control whereby American Government operatives were controlling his actions and trying to kill him, and trying to keep him in hospital.
The Tribunal, in its reasons, set out information which it stated it had obtained from the appellant, including the following:
(1) the appellant knew that he had two charges of assault against him for hitting nurses; he stated that he did not do it, and that he believed the "Americans" made him do it. He was not able to say how the Americans made him assault the nurses;
(2)the appellant knew that a lawyer would speak on his behalf in Court, and he would have to say he did it or not, and he was able to recall that he had been in Court before and told the lawyer that, "the Americans" made him do it, and he would tell his lawyer the same thing.
The Tribunal concluded that the appellant was not willing to co-operate with the discussion of the charges, but that was not the equivalent of a lack of capacity to understand the charges, and formed the view that the appellant was fit to enter a plea to instruct counsel and to endure a trial without adverse consequences.
After the Tribunal's decision, the appellant was seen by Mr Cooke, the duty solicitor acting on his behalf, on 7 June 2007, at the Magistrates Court at Richlands in relation to one of the charges. Mr Cooke has provided an affidavit in which he states that he endeavoured to explain that charge to the appellant, and the appellant told Mr Cooke that he did not commit the assault, saying words to the effect that the CIA and various other organisations made him do it. Mr Cooke stated in the affidavit that he gave certain advice to the appellant, but did not know if he understood the advice and indicated that he was unable to obtain meaningful instructions from him.
This Court has the benefit of a further report from Dr Stedman, and also reports from Dr Fama and Dr Kovacevic. In his further report, Dr Stedman expressed the opinion that the appellant's mental state had not varied greatly since the Tribunal first found him unfit for trial in September 2000. He also made reference to the affidavit of Mr Cooke, observing that Mr Cooke reported that with persistent effort, the appellant was able to understand the nature of the charges and appears to have given some instructions about how he would plead. When pressed, Dr Stedman indicated that he'd formed the view that the appellant, in effect, was giving instructions to plead insanity because he reported symptoms essentially delusional in nature.
I note that Dr Stedman conceded in his report that it is "usually significant" if a solicitor who is diligently trying to help his client is unable to obtain instructions. Dr Stedman ultimately expressed the rather qualified conclusion, "I would be of the opinion that it is possible to find the appellant fit for trial."
Dr Fama came to a different conclusion. His view was that the appellant, due to his chronic schizophrenia, was unfit for trial and that unfitness was of a permanent nature. He noted that while the appellant had made some progress on medication, he would be unable to communicate effectively with the defence counsel, take part properly in his own trial, or give meaningful instructions.
Dr Kovacevic, who also saw the appellant and provided a report dated 19 June 2007, was of the same opinion as Dr Fama. He observed that the appellant has a chronic and severe schizophrenia that is largely treatment-resistant and that the appellant's mental state has remained essentially unchanged over several years, with the appellant continuing to experience delusional beliefs, thought disorder and disorganised behaviour.
As to the criteria in R v Presser [1958] ALR 248, Dr Kovacevic's opinion was that the appellant was probably unable to understand the nature of the charges or Court proceedings so as to follow a trial, understand the evidence or make his defence to the charges. He confirmed that his own experience in obtaining information from the appellant supported the conclusion of Dr Fama in regard to unfitness for trial, and that the unfitness was of a permanent nature.
I note the advice of the assisting psychiatrist strongly supports the conclusions of Dr Fama and Dr Kovacevic that the appellant is unfit for trial, and that the unfitness is of a permanent nature.
In the circumstances, I consider that the Tribunal erred in reaching the decision that the appellant was fit for trial. I am satisfied and find that the appellant is unfit for trial, and that the unfitness is of a permanent nature. The order of the Tribunal is set aside.
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