Re SAB
[2003] QMHC 14
•13 November 2003
MENTAL HEALTH COURT
CITATION: | Re SAB [2003] QMHC 014 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF SAB |
PROCEEDING NO: | 0055 of 2003 |
DELIVERED ON: | 13 November 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 September 2003; 12, 13 November 2003 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr J M Lawrence Dr J F Wood |
FINDINGS AND ORDERS: | 1. That when the alleged offence of common assault was committed on 25 March 2000, the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. That when the alleged offence of unlawful wounding was committed on 20 May 2002, the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld);
4. Order that the defendant be detained as a forensic patient in the Cairns District and Area Network Authorised Mental Health Service for involuntary treatment and care; 5. Approval of limited community treatment, at the discretion of the treating psychiatrist, in the nature of more than overnight limited community treatment, to commence immediately on the following conditions: (1) That the defendant reside at […] or at such other address as is approved in advance in writing by the authorised psychiatrist; (2) That the defendant attend all follow-up appointments and in-patient care are require by the authorised psychiatrist; (3) That the defendant abstain from using alcohol and illicit drugs, and co-operate fully in random medical tests for those substances as required by the treating psychiatrist; (4) That the defendant comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment; (5) That the defendant not drive a motor vehicle unless permitted to do so by the authorised psychiatrist; (6) That the defendant be prohibited from possessing a firearm or other offensive weapon, including knives. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant is charged with one count of common assault and one count of unlawful wounding – where defendant suffers from schizophrenia – where defendant has history of alcohol and marijuana abuse – whether the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld) MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant is presently unfit for trial – where forensic order made – where limited community treatment approved – where defendant has history of alcohol and marijuana abuse – where defendant has three year old child – where defendant continued to be unwell – whether, in approving limited community treatment, the court is satisfied that there is not an unacceptable risk to the safety of herself or others |
COUNSEL: | J D Farmer (9 September 2003) and B G Devereaux (12, 13 November 2003) for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: SAB [“the defendant”] has been charged with two offences. First she has been charged under the name “AD”, with common assault on 25 March 2000. I am satisfied that at the time of that alleged offence she was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000.
Then she has been charged under the name “SAB” with unlawful wounding on 20 May 2002. I am satisfied that at the time of that alleged offence she was of unsound mind as described in the Act.
I am satisfied from the medical evidence that she is presently unfit for trial, but I am not satisfied that the unfitness is of a permanent nature.
These matters were not in contest by the end of the proceedings, nor was it in contest that the Court should make a forensic order in the circumstances. What was in contest was the terms of any limited community treatment.
[The defendant] was born on 20 October 1983. Her mother was of indigenous descent and her father of Greek descent. Her mother died two or three years ago. She lives with her father, her 21 year old brother, […], and her three year old son, […].
[The defendant] suffers from schizophrenia. She also has a history of alcohol and marijuana abuse.
Where the Court finds a defendant unfit for trial, but not permanently so, a forensic order must be made under the Mental Health Act.
Under section 289 of the Act the Court cannot order or approve limited community treatment unless, under subsection (4) it is satisfied there is not an unacceptable risk to the safety of the patient or others having regard to the patient's mental illness or intellectual disability.
Further under subsection (5) it cannot order or approve limited community treatment for a patient found unfit for trial but not permanently so unless it is satisfied that there is not an unacceptable risk that the patient would, if 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.
Under subsection (6) the Court must have regard to (a) the patient's mental state and psychiatric history, (b) the offence leading to the making of the forensic order, (c) the patient's social circumstances, and (d) the patient's response to treatment and willingness to continue treatment.
The first offence, common assault, occurred at about 3.00 p.m. one day in Shields Street, Cairns. The defendant selected a passerby at random and punched her about the head saying, "You mean nothing, you shit." A short time later on the Esplanade the defendant was part of a group of Aborigines to whom police were speaking. The complainant approached. The defendant conceded, "Oh, that's the lady I punched and I'm sorry."
There is no evidence that she was suffering from unsoundness of mind at the time and she conceded to being "off her face" with alcohol and marijuana.
The second offence involved an attack upon a disabled man who was confined to a wheelchair. He lived up the street from the defendant's father's house. There was a friendship between him and the defendant. There is dispute on the material whether there was a sexual relationship between them.
At the time of the second offence the defendant was suffering dense, fixed delusional beliefs of a sexual and persecutory nature. She had consumed a considerable amount of alcohol but, on the evidence, intentional intoxication was not causative of the deprivation of mental capacity. She cut the victim's hair with scissors. She slashed him with a knife causing injuries to his ear, face and leg.
In 1996 the defendant was referred to the Child and Youth Mental Health Service in Cairns for an assessment of her propensity for aggression and violence. At the time no diagnosis was made, although psychiatrists who have subsequently examined her have suggested that she may have been in the prodromal period of schizophrenia. In fact, there was no formal psychiatric treatment or assessment until 2002.
From the age of 15 she abused alcohol and marijuana. There was a pattern of binge drinking. In the past there was some use of amphetamines. She has a criminal history including two counts of stealing, obscene language, interfering with the mechanism of a motor vehicle, obstructing police, disorderly behaviour. She has not served any period in prison.
After the second offence which is before this Court, she was seen by Dr Keith Muir of the Cairns Integrated Mental Health Services. He referred her to the Crisis Assessment and Treatment Team and treatment commenced. She has had a number of admissions to hospital since.
On 18 February 2003 she was admitted for an acute exacerbation of her symptoms and placed on an involuntary treatment order. She was receiving Seroquel and Flupenthixol. She was referred to the Mobile Intensive Treatment Team. On discharge, follow-up was provided by the Community Mental Health Service. She was readmitted on 4 March 2003 with erratic behaviour. Treatment on the same medication was continued. In time she was discharged.
She was readmitted on 8 May 2003 having been non compliant with treatment. At that time she was receiving Seroquel daily, Diazepam nightly and the Flupenthixol fortnightly.
On 27 June 2003 she again became an inpatient. Her limited community treatment had been revoked, secondary to her being caught using marijuana. She was clearly psychotic at the time.
Since April of this year her treating psychiatrist has been Dr Marie Ploetz, who has written a number of reports and who gave oral evidence by telephone in these proceedings. I am going to quote in full two letters written by Dr Ploetz on 4 and 5 September 2003. On 4 September she wrote this:
"[The defendant] is currently on a limited community treatment order as a classified patient under Chapter 7 Part 2 of the Mental Health Act 2000. She is living with her father and her three year old son […] at […]. She is having maximal community intervention as available through the Integrated Mental Health Program (thanks to the Mobile Intensive Treatment Team). She is involved in the daily rehabilitation program and her medication is supervised by MITT and her father. We have serious concerns about [the defendant’s] cooperation with community treatment with MITT which commenced on 1/5/2003. [The defendant] has had two admissions in this period for breach of her LCTO. Despite this she continues to be blatant in her use of drugs and somewhat contemptuous of the treatment program often leaving early or failing to engage in a program. She has been attending ATODS regularly but quite enjoys using drugs.
There have been attempts to facilitate her relationship with her son, […], but the relationship is superficial, lacking the maternal preoccupation that is normal between mother and child at this age. [The defendant] would rather drink at the pub or chase boys than be involved with her son. We have notified DOCS, concerned about the care of […]. Attached is a copy of [the defendant’s] current treatment plan, and a brief report by her community case manager […] regarding her progress and rehabilitation goals.
I reviewed [the defendant] on 28/08/2003, at Community Mental Health Sheridan Street with her case manager […]. [The defendant] was much the same as usual. She is fatuous in affect with extensive delusional ideas and auditory hallucinations. She elaborates fantastical material in a very bland manner, typical of a chronic schizophrenic illness. She remains insightless as to her mental condition the seriousness of her offences and lacks remorse.
She has had a fair trial of community treatment, the maximum that it is available in this remote region. After re-evaluation, we consider it to have been only partially successful. Given her age, seriousness of mental illness and seriousness of the offence, I recommend the forensic order include a period (6 - 12 months) of inpatient rehabilitation at Kirwan Unit Townsville, or Charters Towers. We can in no way guarantee the community's safety currently, and recommend she be in an inpatient facility for intensive rehabilitation. I would appreciate the support of the Court to add weight to this referral for inpatient rehabilitation.
Regarding fitness for trial, [the defendant] has the ability to understand the nature of the charges, to understand the nature of the Court proceedings if they are clearly and simply explained to her, and to challenge the jurors. She is able to decide what defence to offer, and to explain her version of the facts to her counsel and to the court. She is also able to understand the evidence to inform counsel if it is true or not. Therefore, I consider her to be fit for trial."
That was a letter written to the Acting Director of Mental Health on 4 September. The next day, another letter was written, and again, I am going to quote it in full:
"A further note to clarify the treating team's recommendations to the Mental Health Court. Although the treatment in the community has been difficult, [the defendant] has made some gains over the time, in that she is availing herself of the programs, is more inclined to spend time in the home at night, and she's better engaged in a therapeutic alliance than before. She has also taken more mature and appropriate steps to deal with threat and harassment by an ex-boyfriend in initiating a DVO rather than taking matters into her own hands. This option was supported by her father. She is learning how to more appropriately deal with anger and frustration. There have been no actual occasions of violence, dangerous behaviour, or criminal/violent behaviour involving [the defendant] in the time I've been looking after her on her current LCTO. She is seen by a mental health worker several times a day during the week, and this is containing her behaviour to the best level that has yet been seen by staff.
Also, she has residual psychosis. This is less apparent in one's daily interactions with her, so that one was to probe for the delusional material. She is certainly more settled than when I first met her back in April and became her treating doctor. Regularly depot medication insures her compliance with anti-psychotics.
I am being very assertive in my rehabilitation goals for [the defendant], perhaps because of her age, and the fact that she has a son (however he is largely cared for by the father). A period of inpatient rehabilitation is optimal, however, our discussions with Kirwan Rehabilitation Unit suggest that there are no beds available at the moment, as their refurbishment continues. I therefore recommend to the Court that we continue with the current arrangements and provisions of her Limited Community Treatment Order, and the treating team pursue the rehabilitation options when they become available. Therefore, I recommend that the forensic order be made with a LCTO.
I hope this clarifies any concerns the Court may have."
At about that time the Director of Mental Health ceased the limited community treatment that had been in place. The matter came before this Court on 9 September 2003. [The defendant] attended Court with an escort.
The matter came back before the Court yesterday (12 November 2003). By that time it was common ground that she was not fit for trial and it was common ground that it would be detrimental to her mental health for her to attend even the Mental Health Court proceedings.
Dr Ploetz had written another letter on 22nd October 2003 in which she had said this:
"[The defendant] has only been discharged from hospital last week after commencing a trial of Clozapine. She is complying with the conditions of her treatment under an ITO. She has now received Bail on her 2 charges - there is often confusion about her legal situations as the matters need to be regularly mentioned as one is before the MHC and the other charge is in her falsely given name.
We plan to continue community treatment as she is slowly responding. However it is of some note to the court that she was very distressed after appearing in court in September. I consider it to be deleterious to her mental state and continued community rehabilitation to attend court on this occasion. She has been very unwell and a slow response to treatment. She is still quite fragile."
Dr Ploetz then made recommendations with respect to the content of unlimited community treatment order.
Dr Ploetz gave oral evidence by telephone. I would summarise it as follows. In September 2003 the defendant was admitted to hospital. She was there about a month. Her medication was changed to Clozapine. There have been some adverse side-effects from this including hypersalivation. She has been back in the community about a month with her father and son. She is still very fragile. She is still quite psychotic. However, in Dr Ploetz's opinion there has been slow but steady improvement.
The Court heard that Clozapine takes effect gradually and if she remains compliant further improvement can be expected over the coming months. Her response to Clozapine is being closely monitored in the Clozapine clinic under Dr Una Stephenson. There is a good relationship between the defendant's father and the treating team. According to Dr Ploetz he is forthcoming in bringing his concerns about the defendant to the attention of the team.
The defendant is receiving maximal community intervention through the Mobile Intensive Treatment Team. Social aspects of her rehabilitation such as occupation options and fostering capacity to care for her son are being attended to.
A time-table was put before the Court which showed the support she had throughout the week. It was in fact support from 9 a.m. to 4 p.m. Monday to Thursday from 9 until 1.30 p.m. on Friday. Concern was expressed by me and others at the lack of support in evenings and over the weekends. Concern was expressed at the risk there may be to the safety and welfare of the child to which I will return in more detail in a moment.
When the matter came back before the Court today an amended timetable was put forward. This shows all of the weekdays being occupied, including support from St John's Community Service for about 4 hours a week. Funding for this has been obtained through Disability Services Queensland and it is available only until Christmas.
As for the weekends, as I understood the evidence, there are endeavours being made to shift the St John's support from the week days to the weekend: this is not in place yet, and it seems it would leave a gap in the week.
Further, the CATT team, which is the crisis response team, is prepared to make telephone and in person contact with the defendant over the weekends. Again, this has been set in place for six weeks, when it will be reviewed.
That would take the support up until the Christmas period, and there is nothing presently before the Court as to what would happen after Christmas.
I am very concerned that this support will cease at about Christmas time - at a time of festivity in the community and a time when alcohol is perhaps more readily consumed in the community than at other times of the year. It will also cease at a time when there are substantial public holiday periods.
Easy access to alcohol and marijuana has been a major issue in the past. According to Dr Ploetz it is becoming less so. The defendant has been attending drug and alcohol counselling and has reached the "planning and action phase" of dealing with substance abuse.
One of the matters with which the Court must be concerned is whether the welfare and safety of the child would be at risk if limited community treatment were approved. Dr Ploetz gave evidence which was initially concerning that this is "a family who believes in smacking"; however, the evidence did not go on to indicate that there had been any more than smacks on the bottom for misbehaviour and it did not indicate any harm done to the child as a result of this.
She also said that sometimes the child was left with the defendant's brother, who was a user of marijuana. On further investigation, it seems that the child attends day care, from Monday to Friday, throughout the day.
The Department of Family Services has received two notifications with respect to the welfare of the child. The first was in August 2000, when the child was only two months old and there was a report of concern that the child was in a park where alcohol was being consumed. This was investigated by Family Services and they were satisfied that appropriate arrangements had been set in place that this would not recur and the child's welfare would be satisfactorily catered for.
Of more immediate concern is another notification received in May of this year and investigated the next month. The conclusion of the investigation was that the child was at risk of emotional and physical harm through exposure to domestic violence and demeaning references to the child. This related to altercations between the defendant and her ex partner. Since then, the defendant has taken steps to obtain a domestic violence order against the ex partner.
The defendant obviously had very considerable support from the Mental Health Service and had recently been compliant with that medication and social support, and the child had been largely in care of her father and her brother. The Department of Family Services was satisfied that these supports were adequate and they have had no further involvement since June this year.
There is no other evidence of violence or apprehended violence towards the child. Clinically, it is of considerable significance that the child does not feature in the defendant's delusional system. The evidence is that the bond between mother and child ought to be fostered, if possible, in their joint interests.
I mentioned earlier when quoting one of Dr Ploetz' letters the possibility of rehabilitation in the Kirwin Unit in Townsville. This would necessarily involve separation of defendant and child and, as I understand the evidence, it is to be considered only if absolutely necessary.
Concerned that the timetable of support for the defendant did not adequately cover the weekends, I canvassed the question of approving limited community treatment just from Monday to Friday. This was not supported by the Director of Mental Health's counsel or the counsel for the defendant. I received conflicting advice from the assisting psychiatrists as to whether it would be in her clinical interests to have to return to hospital at the weekend. I do not find it necessary to resolve that conflict since further arrangements have now been put in place, albeit arrangements that are not permanent.
In all the circumstances, it seems to me not only that it is in the patient's interests that there be limited community treatment but also that the risk of danger to the safety or welfare of the defendant or her child or, indeed, others is not an unacceptable one in the circumstances. Nor is there an unacceptable risk that she would not return to the authorised mental health service when required, or that she would commit another offence.
I am going to approve limited community treatment at the discretion of the treating psychiatrist on fairly general terms. However, I should say that I consider the treating team to have a particularly heavy responsibility to monitor this defendant's progress and, if there is any deterioration in her progress, to restrict or even stop the limited community treatment.
I have stressed several times that the arrangements in place are temporary and will expire at about Christmas time. Dr Wood went so far as to recommend daily assessment by a mental health worker. The present arrangements, it seems to me, would adequately cater for that but I recommend strongly that steps be taken to ensure that these arrangements continue beyond the six-week period.
I recommend particularly that steps be taken to ensure adequate monitoring and support over the holiday period. If that support is not available through resource restrictions or for other reasons, or if there is a deterioration in the condition of the defendant, it would seem to me appropriate for the discretion to be exercised against the granting of limited community treatment.
In this matter I have given anxious consideration to the risks to the defendant and the child, but concluded that they are not unacceptable. I am going to direct that a copy of the transcript and of these remarks be made available to the treating team.
Now, in terms of a formal order, I order that the defendant be detained as a forensic patient in the Cairns District and Area Network Authorised Mental Health Service for involuntary treatment and care. I approve limited community treatment at the discretion of the treating psychiatrist in the nature of more than overnight limited community treatment, to commence immediately on the following conditions:
That she reside at […], or at such other address as is approved in advance in writing by the authorised psychiatrist;
That she attend all follow-up appointments and in-patient care as required by the authorised psychiatrist;
That she abstain from using alcohol and illicit drugs, and co-operate fully in random medical tests for those substances as required by the treating psychiatrist;
That she comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
That she not drive a motor vehicle unless permitted to do so by the authorised psychiatrist; and
That she be prohibited from possessing a firearm or other offensive weapon, including knives.
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