Re Roe

[2013] QMHC 11

MENTAL HEALTH COURT

CITATION:

Re Roe [2013] QMHC 11

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF JUSTYN JAMES ROE

PROCEEDING NO:

 0031 of 2013

DELIVERED ON:

Delivered ex tempore on 17 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.1.          

That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the offences.2.          

That a Forensic Order is not required.3.          

That a copy of the transcript and reports be made available to the legal representatives, who are authorised to distribute copies of that transcript and those reports to any agency as required, including QCAT, the Adult Guardian, the Department of Communities, Child Safety and Disability Services4.           and the service provider.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with four counts of wilful damage, five counts of public nuisance, four counts of serious assault, eight counts of assaulting or obstructing a police officer and one count of endangering the safe use of a vehicle – where defendant diagnosed with intellectual disability, attention deficit hyperactivity disorder, epilepsy, mesial temporal sclerosis and features consistent with autism spectrum disorder – where defendant subject to a Restrictive Practices Order – where defendant lives in specially designed accommodation and receives continuing support from the Department of Communities, Child Safety and Disability Services – where the Adult Guardian is appointed in relation to the defendant’s personal affairs – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether a Forensic Order required

Mental Health Act 2000 (Qld), Schedule

COUNSEL:

C Dart for the defendant
J Tate for the Director of Mental Health
C J Lloyd for the Director of Forensic Disability
D Holliday for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Forensic Disability (Qld)
Director of Public Prosecutions (Qld)

LYONS J:A

1. There are three references by the legal representatives for Justyn James Roe filed on 8 February 2013, 20 September 2013 and 27 September 2013. Mr Roe is currently charged with 22 offences, all of which are alleged to have occurred between August 2011 and 1 December 2012. They include four counts of wilful damage, five counts of public nuisance, four counts of serious assault, eight counts of assaulting or obstructing police officers and one count of endangering the safe use of a vehicle.

1. The Court has the benefit of a number of reports and, in particular, the report of psychiatrist Dr Peter Rofe, a report by the psychologist, Dr Ash Summers, and the report of Dr Paul White. The Court also has the benefit of the advice of the assisting psychiatrists. The report of Dr Summers indicates that Mr Roe is currently 19 years of age and is a very fit and active young man who is of above average height. He has a diagnosis of intellectual disability, attention deficit hyperactivity disorder, epilepsy, mesial temporal sclerosis, as well as features consistent with autism spectrum disorder. Mr Roe is currently supported by the Department of Communities, Child Safety and Disability Services (the DCCSDS) Accommodation Support and Respite Services and transitioned to Disability Services funded accommodation from the care of Child Safety when he turned 18 on 7 March 2012.

1. On 4 February 2013 the Adult Guardian was appointed by QCAT for Mr Roe’s personal decisions in relation to accommodation, contact, health care, the provision of services, legal matters and advocacy.  Mr Roe is also the subject of a Restrictive Practices Order and his current service provider has short term approval from the Adult Guardian for the use of restrictive practices of containment, seclusion, chemical restraint and restricted access to objects. Dr Summers’ report indicates that Mr Roe is not currently a client of a medical health service and that, when Dr White assessed him, he could not find any evidence of an additional psychiatric diagnosis but noted that he would continue to present as an ongoing chronic risk to himself and the community, but that the risk at that time was adequately addressed by the carers and the Specialist Response Service (SRS).

1. Mr Roe was recently seen by Professor O’Brien who stated that his challenging behaviour was a consequence of his early adverse developmental experiences and that he was “extremely fearful and anxious, to such a degree that it warrants a diagnosis of an anxiety disorder”.[1] The report confirmed that he did not have a psychotic disorder. The report also recommended that oral Risperidone be removed and there be a depot injection to be increased to assist in the maintenance of therapeutic levels. That report indicated that the current behavioural monitoring was excellent, but that the duration of seclusion per day had increased every month since the use of seclusion was approved in late July 2012.

   [1]Report of Dr Summers dated 24 April 2013, at p 7.

1. Mr Roe lives in specially designed accommodation and receives two to one staffing for 12 hours every day with the remaining hours being one to one support. He receives a fortnightly injection of Risperidone and his medication is reviewed by psychiatrists every two months.

1. The report of Mr Wayne Hilber dated 9 August 2013 indicated that Mr Roe will continue to be housed in his specially designed accommodation in Rockhampton and the DCCSDS will continue to provide support. QCAT has provided the approval for seclusion and restraint, including chemical restraint. That approval is in place until June 2014 when it will be reviewed. Clinical support is provided by SRS who provide support for the implementation of the positive behaviour support plan.

1. Dr Peter Rofe considered that Mr Roe was of unsound mind at the time and lacked the capacity to understand what he was doing as well as the capacity of control and the capacity to know he should not do the act. He does not consider he is fit for trial. Dr Rofe noted that his behaviours of concern include throwing rocks and palings at passing motor vehicles which has in the past caused an accident between two vehicles. He has also absconded in the past. If he does abscond he has no traffic sense and intentionally places himself in the front of vehicles in order to challenge them. He receives depot antipsychotic medication of Risperdal Consta every fortnight and is on a high dose of Risperidone, Lamotrogene and Quetiapine. The treatment plans which are in place are coordinated with local police, ambulance and mental health services.

Advice of assisting psychiatrists

Dr McVie

1. Dr McVie took into account the clinical evidence regarding Mr Roe and noted that he was physically and psychologically abused as a young child. She noted that he was taken into the care of Child Safety from the age of 9 and has recently transitioned to the care of Disability Services. Dr McVie considered that having regard to the nature of Mr Roe’s combined disabilities and the totality of the material that has been provided, which includes a 2011 report by Dr Paul White, an expert in this area, as well as the reports from Disability Services, I should accept Dr Rofe’s consideration that Mr Roe would have been deprived of the capacity at least to control his actions and to know he ought not do these acts for all of the offences. 

1. Dr McVie considered that Mr Roe is unfit for trial and that unfitness would be considered permanent.  In relation to whether a Forensic Order was required, Dr McVie referred to Mr Roe’s treatment needs and noted that he is on considerable doses of antipsychotic medication. He had however been transitioned to purpose-built secure accommodation in January 2013 and the reports indicate a number of programs that have been put in place.  She also referred to indications that there has been considerable review and analysis of his problem behaviours and that he is getting access to psychiatrists in Rockhampton. Dr McVie advised that his treatment needs are currently being met and there would be no additional benefit to imposing a Forensic Order at this point.

Dr Lawrence

1. Dr Lawrence agreed with Dr McVie’s findings.  Dr Lawrence considered that the evidence clearly supports the fact that Mr Roe has a long history of challenging behaviour including property damage at home and in the community and physical attacks on staff.  He was identified as having intellectual difficulties and behavioural problems from an early age and he has been receiving services from DCCSDS over a period of time. 

1. Dr Lawrence advised that Mr Roe’s intellectual impairment, which was a natural mental infirmity with no evidence of a co-existing psychiatric illness or psychosis, led to the deprivation of a capacity to be able to control his behaviour with regards to all of the charges. Dr Lawrence noted that Mr Roe is now receiving some psychiatric medications and living in specially designed premises and a positive behavioural plan has been developed to cope with him. Dr Lawrence’s advice was that his needs have been met over time and psychiatric services could not add to his management. She agreed with Dr McVie that there was no need for a Forensic Order to be added at this time.

FINDINGS AND ORDERS

1. On the basis of the report of Dr Rofe and Professor O’Brien’s views, together with the advice of the assisting psychiatrists, I am satisfied, given the nature of the offences, and the 22 charges currently the subject of the reference, that Mr Roe was of unsound mind in relation to all of those offences. 

1. In relation to whether a Forensic Order is required, we have a report from Mr Wayne Hilber, which indicates that Mr Roe is appropriately housed in specially designed accommodation in Rockhampton. DCCSDS will continue to provide support. QCAT approvals, and the appointment of the Adult Guardian, are in place and appropriate, and clinical support is provided by the SRS who provide support for the implementation of the positive behaviours support program.

1. On the basis of Mr Hilber’s report, and the advice of the assisting psychiatrists, I am satisfied that Mr Roe is receiving appropriate treatment and care. The offences occurred over a short period of time, and there are now very appropriate arrangements in place.  I note that there has been no more offending in 2013, which suggests that the strategies are appropriate.  Mr Roe’s needs and the protection of the community are being met. Therefore, whilst there is a finding of unsoundness, I am satisfied that a Forensic Order is not required.

1. I order that a copy of the transcript be made available to the legal representatives, who are authorised to provide a copy of the transcript, together with reports, to any agency that might require them, including QCAT, the Adult Guardian, the DCCSDS and the service provider.

Orders

1.          That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.

2.          That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the offences.

3.          That a Forensic Order is not required.

4.          That a copy of the transcript and reports be made available to the legal representatives, who are authorised to distribute copies of that transcript and those reports to any agency as required, including QCAT, the Adult Guardian, the Department of Communities, Child Safety and Disability Services and the service provider.