Re RBD
[2002] QMHC 2
•28 June 2002
MENTAL HEALTH COURT
CITATION: | Re RBD [2002] QMHC 002 |
PARTIES: | REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF RBD |
PROCEEDING NO: | 0134/02 |
DELIVERED ON: | 28 June 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 May, 18 June 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRIST: | Dr JF Wood |
FINDINGS AND ORDERS: | 1. Finding that the patient is unfit for trial; 2. Finding that the unfitness for trial is of a permanent nature; 3. Order that there be liberty to apply. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – Fitness for trial – where Mental Health Tribunal found patient unfit for trial – further reference by legal representative of patient to Mental Health Court – whether patient presently unfit for trial – whether unfitness for trial was of a permanent nature – standard of proof - where elderly patient suffering physical and mental deterioration PROCEDURE – COURTS – EXERCISE OF JURISDICTION WHERE NO PROCEDURE SPECIFIED – where Mental Health Tribunal had found patient unfit for trial – where legislation replaced Mental Health Tribunal with Mental Health Court – where further reference made by patient’s legal representative to Mental Health Court – whether Mental Health Court had jurisdiction to determine patient’s fitness for trial – whether issue before Mental Health Court the same as that before Mental Health Tribunal – whether res judicata Mental Health Act 1974 (Qld) (repealed), s 34 Kesavarajah v R (1994) 181 CLR 230 at 245, considered. |
COUNSEL: | RA Mulholland QC for the patient W Isdale for the Director of Mental Health |
SOLICITORS: | Rees R & Sydney Jones for the patient The Crown Solicitor for the Director of Mental Health |
WILSON J: RBD has been charged with 21 counts of indecent dealing between 1945 and 1975 and one count of rape in November or December 1966. He has twice stood trial on the rape charge. The first trial resulted in a hung jury. The second trial resulted in a conviction, but that was set aside on appeal and a retrial was ordered.
The matter of his mental health was then referred to the Mental Health Tribunal on 22 August 2000 by the Director of Public Prosecutions. His soundness of mind at the times of the alleged offences was not in issue, but his fitness for trial was. On 21 February 2001 Chesterman J made the following findings and orders:
“I therefore find, formally, that at the times relevant to the offences with which the patient has been charged the patient was not suffering from unsoundness of mind within the meaning of section 33 of the Mental Health Act. I find, however, that the patient is presently unfit for trial.
I therefore order that the patient be detained as a restricted patient under part 4 of the Act in the Rockhampton Base Hospital, but be granted leave pursuant to section 34A of the Act on terms which I will initial and which have been seen by counsel for all parties.
I give leave to use the record in these proceedings in connection with the patient's future treatment, in any proceedings before a Patient Review Tribunal and in connection with the further prosecution of the charges should that become appropriate.”
The patient's mental condition in relation to his fitness for trial was subsequently reviewed by a Patient Review Tribunal in accordance with s 34 of the Mental Health Act 1974. On 4 February 2002 a Patient Review Tribunal found that he was fit for trial. Under s 34(2) of the 1974 Act the Patient Review Tribunal was obliged to report its decision to the Attorney-General, who might order that the proceedings be continued against the patient. The Attorney-General has not acted under that section.
An appeal against the Patient Review Tribunal decision pursuant to s 37 of the 1974 Act was filed in the Mental Health Tribunal on 14 February 2002. On 28 February 2002 the Mental Health Act 2000 commenced to operate, and the Mental Health Court replaced the Mental Health Tribunal. Under the transitional provisions of the new Act, the Mental Health Court has jurisdiction to deal with the appeal: s 583.
The appeal was listed for hearing on 31 May 2002. That morning the patient's legal representative had filed a notice in the Mental Health Court referring the matter of his mental condition relating to the offences to the Court: Mental Health Act 2000 s 257. It was clear that fitness for trial was the only aspect of his mental condition to be agitated on the reference. There was argument as to the validity of the reference and as to the nature of the orders which the Court would have power to make on the appeal. I ruled that the Court had jurisdiction to determine the reference, and said I would publish reasons for so ruling. It then became unnecessary to determine the appeal.
So far as relevant, ss 256, 257 and 258 of the Mental Health Act 2000 (which are in chapter 7 part 4 of the Act) provide -
“256 Application of pt 4
This part applies if there is reasonable cause to believe a person alleged to have committed an indictable offence -
(a)is mentally ill or was mentally ill when the alleged offence was committed ....
257 Reference to Mental Health Court
(1) The matter of the person's mental condition relating to the offence may be referred to the Mental Health Court by -
(a) the person or the person's legal representative ......
258 How reference to Mental Health Court is made
(1) The reference is made by filing notice in the approved form in the registry.
(2) The notice must be accompanied by a copy of any expert's report on the expert's examination of the person.”
Thus, a reference may be made if there is reasonable cause to believe someone was mentally ill when the alleged offence was committed or if there is reasonable cause to believe he is mentally ill. Mental illness at the time of the alleged offence is relevant to criminal responsibility, while present mental illness is relevant to fitness for trial.
So far as relevant, ss 267, 268, 269, 270 and 271 provide -
“267 Mental Health Court to decide unsoundness of mind and diminished responsibility
(1) On the hearing of the reference, the Mental Health Court must -
(a)decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed....
(2) This section has effect subject to sections 268 and 269.
268 Reasonable doubt person committed offence
(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the “disputed offence”).
.....
269 Dispute relating to substantially material fact
(1) The Mental Health Court must not make a decision under section 267(1)(a) ..... if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.
....
270 When Mental Health Court must decide fitness for trial
(1) The Mental Health Court must decide whether the person is fit for trial if -
(a)the court decides the person was not of unsound mind; or
(b)under section 268 or 269, the court must not decide whether the person was of unsound mind when the alleged offence was committed.
.........
271 Mental Health Court to decide whether unfitness for trial is permanent
If the Mental Health Court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is of a permanent nature.”
The issue of whether the patient was of unsound mind at the time of the alleged offences was determined (albeit formally) by the Mental Health Tribunal. That finding has never been challenged in any way, and there was no attempt to reopen the issue before the Mental Health Court. The patient's position was quite clear, namely, that he concedes he was of sound mind at the times in question, that he did not commit the alleged offences, and that he is unfit for trial (and permanently so).
Every accused person is entitled to a fair trial, and there cannot be a trial which is fair to him if he is unfit for trial within the meaning of the authorities. His mental condition may alter with corresponding alteration in his fitness for trial. As counsel for the Director of Public Prosecutions submitted –
“ Fitness is time-dependent in the sense of when one is looking at it. Soundness [of mind] is fixed in time, the time of the offence. So that the issue of fitness changes each time one looks at a particular time-frame. So it's a different issue each time, as it were.”
In P (Mental Health Tribunal; 20 June 1989) Ryan J considered whether the Tribunal had jurisdiction to determine a second reference in relation to a patient's mental condition. On the first reference the Tribunal was of the opinion that facts relating to the alleged offences were so in dispute that it would be unsafe to make a determination, and was accordingly restrained by the legislation from doing so. Ryan J considered that there was thus no judgment in the prior reference on the issue of the patient's unsoundness of mind, and so the second reference was not incompetent on the ground of res judicata or issue estoppel. However, on the first reference the Tribunal had gone on to order that the proceedings be continued according to law, and so it was functus officio.
In the present case, there has been no order of the Mental Health Tribunal or the Mental Health Court that the proceedings against the patient for the offences continue according to law. Moreover, as I have explained, the issue of fitness for trial which is now before the Court is a different issue from the issue of fitness for trial which was before the Mental Health Tribunal.
Section 270 of the Mental Health Act 2000 sets out circumstances in which the Mental Health Court must decide the question of fitness for trial. It does not preclude it from deciding that question where soundness of mind at the time of an alleged offence is conceded or has previously been determined.
In my view there is no jurisdictional impediment to the Court’s determining the fresh reference.
The patient, who was born on 30 August 1916, is presently resident in a nursing home in Rockhampton. According to an affidavit sworn by his general practitioner on 17 May 2002, he has a number of physical ailments, namely -
(a) venous insufficiency;
(b) chronic bronchitis;
(c) heart block (he has a pacemaker);
(d) hypertension;
(e) gout;
(f) bilateral osteoarthritis of the lower limbs;
(g) congestive heart failure;
(h) diabetes.
He takes about half a dozen different medications for his various ailments.
The patient’s mental condition has been the subject of examination and report by several psychiatrists over recent years. In particular,
(a) Dr Joan Lawrence has provided reports dated 18 June 1997, 11 June 1998, 9 June 2000 and 20 May 2002;
(b)Dr Peter Fama has provided reports dated 10 February 2001 and 5 May 2002;
(b) Dr Ian Wilson has provided reports dated 13 June 2001, 5 November 2001 and 30 May 2002; and
(d)Dr Donald Grant has provided a report dated 21 January 2002.
Dr Grant also gave oral evidence on 31 May 2002.
In the Dictionary in Schedule 2 to the Mental Health Act 2000 the following appears-
“ ‘fit for trial’, for a person, means fit to plead at the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.”
In Kesavarajah v R (1994) 181 CLR 230 at 245 Mason CJ, Toohey and Gaudron JJ said -
“In Reg. v Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice [1958] VR 45 at 48. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge”.
The patient is an old man with significant physical problems and impaired cognitive and memory functioning. Drs Lawrence, Fama and Wilson all reported deterioration in his physical and mental condition over the period of their examinations, and considered that he suffers a progressive dementia probably due to cerebrovascular disease. Dr Grant disagreed with that diagnosis in the absence of a clear medical history of stroke or evidence of cortical brain damage clearer than that obtained on the brain scans performed on the patient. Despite this disagreement as to diagnosis, the opinions of all the experts support a finding of unfitness for trial, as was conceded by counsel for the Director of Public Prosecutions.
In mid 2000 Dr Lawrence found that the patient had significant difficulty in finding words, his comprehension of questions appeared limited and his ability to think abstractly and to think in any complex way was significantly reduced. She found it difficult to obtain a precise or logical ordered history or information from him, particularly in response to questions. Seeing him again almost two years later, she saw physical deterioration, and –
“I noticed that his responses were significantly slowed from what they had been on the previous interview. His habit of reiterating and commenting quietly, almost as if talking to himself, audibly trying to associate to the answers was even more noticeable. More prominent was his distractibility. He rarely got to a correct answer by his attempted method of associations and far more frequently than not, became lost in the associations, forgetting the original question. Sometimes his responses petered out and he would require prompting. There appeared to be a tendency to perseverate. There was significant restriction of the scope of his thought processes.
Very prominent was his inability to recall names not only of people but of things and his tendency to use descriptions or emotional associations as supplements on occasions.
He was unable to give any substantial attention to any matter of complexity. His concentration was markedly diminished, particularly compared with what it had been previously.
His affect was not depressed. I would say, overall, he was euthymic. However, I noticed on occasions evidence of frustration as expressed in his behaviour of thumping his arms down when he could not remember certain significant names which he felt were on the tip of his tongue. There were numerous instances of his inability to recall a name or an event when addressed directly but in indirect conversation there was evidence of use of the name or words more readily. This is a not uncommon finding in the increasing age. There was significant restriction of his affect, as well as thought and attention. Also evident in his affect was a degree of resigned acceptance.
As illustrated by the interview, there was significant impairment of cognition and memory both recent and remote. He could not discuss any topic in any sustained way.
There was no evidence of any psychotic phenomena such as delusions or hallucinations.”
She expressed the following opinions -
“OVERALL OPINION
In my opinion, [the patient] continues to suffer from severe impairments of his physical and mental health. His physical health continues to deteriorate as a result of multiple medical and surgical problems as outlined. These problems would affect his mental state with the possibility of fluctuating interference with cognitive functioning particularly when acutely ill but also with the likelihood that those medical problems which affect his health particularly those affecting his vascular system are also affecting his cerebral vasculature.
In my opinion, there is also an age related deterioration affecting his memory. In my observations over a period of now five years I have noticed a significant deterioration in memory and cognitive function. This has all been of a consistent kind. It is apparent that some personal characteristics of his cognitive dealings, particularly his habit of reiterating questions, making comments to himself audibly and using associations to answer questions has become significantly accentuated over this period of time.
Also very apparent is the significant restriction of his field of attention and concentration so that his ‘world’ is now bounded by the four walls of his room, the simple routine of his day to day care in [the nursing home] and the social and emotional support and comfort provided by his brother and his religious beliefs and training. He appears to have come to some acceptance of his state and ultimate mortality and is content within this.
To some extent I believe he is likely to have excluded from his mind or attention the matters of litigation and of the allegations which have been made against him and the subsequent exposure to the legal process. Whilst there may well have been some element of not wanting to consider something distressing to him. The process of age has also significantly restricted his field of attention and interest. This is consistent with a Dementia process, primarily age and vascular related.
His multiple medical problems contribute and continue.
His diagnosis under DSM-IV on Axis I is:
·Dementia – Vascular and associated with other general medical conditions.
FITNESS TO PLEAD
His cognitive state is such that he would not be able to properly instruct Counsel in preparation for trial. [The patient’s] cognitive deficits are now worse than two years ago. He is not able to attend to any degree of complexity of a matter, or concentrate for any length of time.
While he had some basic understanding of the courtroom process, his ability to comprehend the complexity of evidence, or retain what he has heard in order to instruct Counsel are now even less than they were. His health is likely to fluctuate but will never improve to the point when he could endure the effort of coming to and sitting in court even with very frequent breaks. It is far more likely than not his health would deteriorate with the stress of the courtroom.
Thus, his mental condition is such that he is unfit to instruct counsel and to endure his trial.
His condition has steadily deteriorated over five years and in my opinion will not improve. Thus, he is unfit for trial and such unfitness is permanent.”
Dr Fama also commented that the patient was noticeably frailer and his memory more impaired on his second examination. He said -
“I do not see how [the patient] could adequately instruct counsel or take part meaningfully in his own trial. He preserves everyday verbal ability and social proprieties, but he is in my view incapable of attending to moderately complex evidence at a sustained level, as he would need to do in court. Moreover, though he could himself as a witness rabbit on about his innocence, I cannot envisage his mounting any coherent defence. He would in that situation become weary, rambling, and even agitated.
Though he is deteriorating, I still think that [the patient] could endure his trial in the sense that he would become upset and depressed, but would not thereby suffer any further significant and lasting decline in his mental condition.
.......I support my original view that this patient is unfit for trial in terms of Section 270 and the definition in Schedule 2 of the Mental Health Act 2000.
I am further of the view that if [the patient] comes to be determined unfit, that unfitness ought to be considered to be of a permanent nature. ...."
Dr Wilson said in his most recent report -
“ He is not fit for trial, as he is (at least sometimes) unaware of the substance and details of what he is charged with, and would find court proceedings very hard to follow meaningfully. He may be able to challenge jurors if advised at the time by his counsel. He would be clear that he would want to plead not guilty. He would be very likely to be quite unable to explain what had happened with regard to the charges from his point of view, either to his counsel or the court.”
In January this year Dr Grant wrote -
“THE QUESTION OF FITNESS FOR TRIAL
In regard to his fitness for trial I believe that [the patient] does have an understanding of the charges, which he is facing. It would be understandable that he might have difficulty recalling events of 35 years ago, but this would be normal and would not be a reason for him to be unfit for trial. I believe that [the patient] would be able to instruct his solicitor as to events that he could remember from that time, and would be able to comment on recollections of other people.
[The patient] is aware of his solicitor’s name and role, aware of his barrister and his role, but is not able to give me his barrister’s name. I believe that he understands the role of the judge and jury and other court officers. I believe that he would be able to respond appropriately when asked questions in court. In his previous trial he performed quite well in the witness box, and I would expect that his current performance would not be very different from the point of view of his mental functioning.
[The patient] clearly has an appropriate view of guilt and innocence, and would be able to plead.
[The patient] has some short term memory difficulties, but overall his functional memory appears to be good and I believe this indicates that he should be able to follow events in a case in court reasonably well. His solicitors might have to give some attention to reminding him of information from time to time and ensure that he is kept up to date.
The main limitations in my view, in regard to [the patient] being fit for trial, relate to his ability to endure the trial without becoming exhausted or physically unwell. His ability to participate in a prolonged interview and examination with me indicates that he does have reasonable powers to attend over a period of time. However he is a very elderly man with quite significant health limitations, and this will affect his stamina and ability to stand up to a trial, particularly if he was in the witness box for prolonged periods. He did show evidence of becoming agitated when questioned about his legal situation, and if he became agitated in a trial situation this could reduce his performance and make it more difficult for him. He becomes physically tired and short of breath on exertion, and his physical health is fairly precarious and would need monitoring during a trial. The combined physical and mental stresses of a trial would make it quite difficult for [the patient] and it would clearly be an ordeal for him. However I believe that he has no sufficiently severe mental or physical problem to render him unfit for trial.
In summary, my opinion is that [the patient] is fit for trial. This fitness is marginal, because of his physical condition, his tendency to become agitated, and his marginal memory and cognitive functioning consistent with his advanced age. I can find no evidence of dementia, but his advanced age and frailties will mean that he will require special consideration and support during any trial process.”
In oral evidence, Dr Grant was asked to express opinions in the light of deterioration in the patient’s physical condition which had taken place since he had examined him and which had been reported by the other medical practitioners. In particular, his mobility was much reduced and he was now incontinent of urine. Dr Grant regarded the latter as a marked change, indicating physical and probably also mental deterioration; the deterioration in his physical condition could affect his mental status, possibly even causing some low grade fluctuating delirium. He commented on the relationship between the patient's physical problems and his concomitant mental state in these terms –
“Brain function is obviously dependent upon the brain being in a satisfactory metabolic environment and having enough oxygen being supplied through the blood supply and so on. So anything that affects the oxygen levels of the metabolic environment for the brain can affect the way in which the brain functions and the mental functioning of that person. [The patient] has diabetes. Although it’s not requiring insulin it is – it is nevertheless a disease that might affect his mental functioning. Blood sugar changes can quite dramatically affect the way in which one’s mental status functions particularly sudden drops in blood sugar would – could cause coma and rises in blood sugar can cause confusion and other mental problems. He has relatively mild diabetes and one wouldn’t expect rapid fluctuations in his blood sugar but nevertheless they might be affecting him. Diabetes also predisposes a person to develop vascular disease and so the diabetes might be having a long term effect on making his vasculature worse. He has hypertension and that can result in small vessel disease in the brain. It can cause problems with the circulation at a macro level or a micro level so that one can get strokes secondary to hypertension or can get small vessel disease and difficulties with oxygen getting through. Anyone with an ageing brain with no reserves can be affected indirectly by a whole range of physical conditions elsewhere in the body. If one gets a urinary tract infection that can be enough to cause delirium in an old person. [The patient] has had prostate problems and could well develop urinary tract infections. If one gets chest infections which are common in old age, and he’s had chest infection problems in the past, then that can cause delirium as well through lack of oxygen and so on, the toxic effects of the infection. He has heart disease and heart disease can indirectly impact upon the brain as well. He has in the past had heart failure which means that the heart is not functioning efficiently in producing – in circulating the blood, so in that instance he could develop symptoms secondary to lack of adequate blood supply to the brain. He’s had cardiac arrhythmias in the past and he’s had to have a pacemaker inserted in 1996 to try to regulate his heart rhythm. That I understand is more or less under control but any changes to heart rhythm of any significant kind could affect his cerebral function as well. Even simple things like severe constipation can cause someone with no cerebral reserves to become confused. So, there’s a whole range of factors there. He’s also on a number of medications and medications can sometimes interact and cause problems with cerebral function. So, because he’s got all of those different physical things, and there may be others that I’ve missed out on, then it leaves him very vulnerable in terms of developing problems with his brain function and I would see that more in terms of probably low grade delirium rather than a dementing process, that from time to time he will get confused, increased memory problems and find it hard to function in everyday life.”
In Dr Grant's opinion the degree of the patient's response to those physical problems or a combination of them will continue to fluctuate. The fluctuations will be unpredictable and may be very rapid, and as his brain ages more, the problems will become worse, and he will become more and more vulnerable to fluctuations in his mental status. Dr Grant said that if the patient's memory function has deteriorated significantly so that he is not able to follow events from day to day and from time to time during the day, and if he has physically deteriorated to the extent put to him, -
“ .... then I think I would probably be coming to a similar conclusion to Dr Lawrence, that at the moment he is unfit for trial.”
Dr Grant had this to say in relation to the permanency of the patient's mental condition -
“HER HONOUR: Can I ask you, Doctor, this. You’ve just indicated that if you accepted their observations, you would find he was currently unfit for trial. Would you expect his condition to continue to fluctuate?
DR GRANT: I would expect that his condition will fluctuate and that there will be days when he functions better but that really is very dependent upon his physical progress and the occurrence of further physical complications. The likely longer term trajectory would be that he would not improve substantially. That, if anything, he is going to slow [sic] deteriorate because he’s getting older and more vulnerable and probably physically iller. So that I wouldn’t expect him to improving but rather, in the long term, deteriorating and becoming more vulnerable to variations and fluctuations.
HER HONOUR: Well, can I ask you this. In your opinion, are the fluctuations likely to be such that there may be times when he is fit for trial or is – is it your opinion that he is not only currently unfit but he’s not going to – not likely to become fit?
DR GRANT: Well, when I saw him in January I – I considered he was fit for trial and I felt that at that stage his condition was such that if he received appropriate support and consideration he could endure a trial. It appears that he’s deteriorated since then and it seems now much more likely that his condition is going to fluctuate and deteriorate in a gradual way to the extent that it’s becoming less and less likely that he’ll have periods when he’ll be fit for trial and that overall the degree of fluctuation and deterioration is likely to mean that he’s going to be very – remain, most of the time, unfit for trial.”
Being satisfied as I am that the patient is currently unfit for trial, I must also decide whether the unfitness for trial is of a permanent nature: Mental Health Act 2000 s 271. This question is to be determined on the balance of probabilities (s 405(2)), and I accept that the standard is a high one in the circumstances, having regard to the seriousness of the issue: R v Schafferius [1987] 1 QdR 381.
Counsel for the patient submitted that the evidence supports a finding of permanent unfitness, while counsel for the Director of Public Prosecutions and Counsel for the Director of Mental Health submitted that, having regard to the fluctuations in the patient's mental condition, I should not find that it is permanent.
I found the advice of Dr Wood, the Assisting Psychiatrist, particularly helpful on this question. He distinguished the fluctuations in this patient's mental condition from the gross fluctuations found in a patient suffering from mania. He said -
“ In mania, one might fluctuate to a normal state and then to an extremely abnormal one. The big question perhaps is whether [the patient] ever fluctuates to a normal state or whether the best he achieves is a condition described by Dr Grant as marginal fitness for trial.”
If he has a progressive dementing condition (as he does in the opinions of Drs Lawrence, Fama and Wilson), the classic course of such a fluctuating state would be always downwards, with ups of improvement, but never quite reaching the previous best state. Dr Wood said -
“So that on that sort of basis, a level assessed as fit for trial but only marginally so, might be a long time appearing again or might never appear again."
The patient's already advanced age, his obviously deteriorating physical condition, and what on any view of the evidence is his ongoing mental decline with unpredictable fluctuations in his mental state have led me not only to be satisfied that he is presently unfit for trial, but also to be satisfied that his unfitness is permanent in nature.
I find that the patient is unfit for trial and that the unfitness for trial is of a permanent nature.