Re SGA
[2011] QMHC 1
•23 February 2011
MENTAL HEALTH COURT
CITATION:
Re SGA [2011] QMHC 1
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL IN RESPECT OF SGA
PROCEEDING NO:
0223 of 2010
DELIVERED ON:
23 February 2011
DELIVERED AT:
Brisbane
HEARING DATE:
3, 16 February 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr VargheseFINDINGS AND ORDERS:
- The appeal is allowed;
- The decision of the Mental Health Review Tribunal on 21 September 2010 revoking the Forensic Order is set aside;
- The Forensic Order of 17 December 2008 is reinstated;
- Limited Community Treatment is approved in the terms set out in Exhibit 1.
CATCHWORDS
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where the Attorney-General appeals a decision of the Mental Health Review Tribunal made on 21 September 2010 to revoke a Forensic Order – where that Forensic Order was made by the Mental Health Court on 17 December 2008 – where the patient has previously been diagnosed with a mental illness and has a history of a assaultive behaviour - where the reporting psychiatrists agree the patient is currently without symptoms – whether the patient suffers from a mental illness – whether the decision of the MHRT should be upheld or set aside.
COUNSEL:
K Forrester for SGA
J Tate for the Director of Mental Health
B McMillan for the Attorney-GeneralSOLICITORS:
Queensland Advocacy Incorporated for SGA
Crown Law for the Director of Mental HealthCrown Law for the Attorney-General
Ann LYONS J:
This appeal
[1] This is an appeal by the Attorney General against a decision of the Mental Health Review Tribunal on 21 September 2010 to revoke a Forensic Order which had been made by the Mental Health Court on 17 December 2008 in relation to SGA.
The Mental Health Court decision of 17 December 2008
[2] SGA, who has had an internationally recognised motor sports career, was charged with a number of offences all of which had occurred in 2008 when he was 33 years of age. He was charged with assault occasioning bodily harm, wilful damage, and two counts of assault or obstructing a police officer. All of those offences were alleged to have occurred on 14 August 2008. SGA allegedly punched a man who was waiting for his wife. He tore his shirt and then returned and punched him again. He remained at the scene until police arrived. He claimed that as the man had winked at him and called him “a bitch” he had to punch him in his own defence. He had then punched him again after he again called him “a bitch”. After he was arrested he had then attempted to leave the police station and was restrained.
[3] He was also charged with two further offences of assaulting or obstructing a police officer on 16 August 2008. He had been returning from a shower in the watch house and he ran at a police officer and punched him on the chin. He explained that it was ‘payback’ for detaining him on a previous occasion after he was granted bail. When he was in court with respect to those charges he was observed to be laughing inappropriately when the charges were read. He also threw tea over a court liaison officer and was considered to be flippant and indifferent to the court. He was subsequently with a number of earlier offences including carrying an exposed weapon in a public place on 25 January 2008 and two counts of stealing – one on 13 May 2008 and the other on 14 May 2008. All those charges were the subject of a reference to the Mental Health Court in October 2008.
[4] SGA had initially been admitted to the Gold Coast Hospital as an involuntary patient from the watch house on 18 August 2008 whilst facing those 9 charges. Following his transfer to The Park on 7 November 2008, SGA was on the open ward for approximately six weeks without any signs of psychotic behaviour or mania.
[5] The reports of Dr Bersin dated 19 August 2008, and 5 November 2008 as well as Dr Andrew Davison Report dated 9 December 2008 were before the court at the hearing on 10 December 2008. Dr Bersin diagnosed SGA as having a Bipolor Mood Disorder, Type 1, Manic Phase, with Psychotic features. Dr Bersin noted that he also exhibited some antisocial personality traits and stated there was a long history of illicit substance abuse. He stated however that a urinary drug screen on 18 August 2008 had been negative for illicit substances. Dr Bersin noted that all of the August 2008 offences had occurred “in close temporal sequence and SGA’s manic symptoms persisted for three weeks after he was admitted to the Gold Coast Hospital”. He considered that “These offences occurred due to SGA’s manic, hyper-aroused and irritable state of mind in the context of mental illness.”
[6] Dr Davison had become SGA’s treating psychiatrist after his transfer to The Park and he provided an update report on his current condition to the Court. Dr Davision noted that SGA’s acute manic episode had passed and that his condition had stabilised on mood stabilising and anti psychotic medication. Dr Davison noted some instances of inappropriate behaviour since the transfer which he considered to be part of his personality functioning and anxiety rather than due to his Bipolar Mood Disorder or psychotic illness.
[7] On 17 December 2008, the Mental Health Court found that SGA was of unsound mind in relation to six of the nine charges which had been referred to the Court. SGA was found to be of unsound mind in relation to all of the offences which occurred in August 2008 and placed on a Forensic Order. Philippides J held;
“In relation to those offences, I find that the defendant was of unsound mind at the relevant times. The defendant suffers from a bipolar disorder and was, at the time of the alleged offences, manic and deprived of the capacity to control. I consider that a forensic order is warranted.”
[8] He was found not to be of unsound mind in relation to the three remaining charges which were the earlier offences which had occurred in January 2008 and May 2008. He was found to be fit for trial. On 31 May 2010 he was convicted and discharged in relation to those three remaining charges in the Southport Magistrates Court.
[9] On 15 December 2008 SGA assaulted a newly admitted co-patient which resulted in his being placed in seclusion. SGA was subsequently charged with assault occasioning bodily harm. SGA incurred a further charge of common assault on 18 May 2009, which involved aggression towards a nurse.
[10] On 9 September 2010, those two further charges were referred to the Mental Health Court by the Director of Public Prosecutions. That reference is yet to be determined.
The decisions of the Mental Health Review Tribunal
[11] The Forensic Order made on 17 December 2008 was regularly reviewed. The Forensic Order was confirmed by the Mental Health Review Tribunal (MHRT) on 5 June 2009 and 4 December 2009. Dr Davison provided reports at those hearings which indicated a suspected diagnosis of a “Bipolar Disorder- mania with psychosis in partial remission; or Schizophrenia, paranoid type: Cluster B personality Disorder”.
[12] On 11 May 2009 an application was made for ECT noting the diagnosis of Bipolar Disorder in November 2008 and indicating “Antisocial and narcissistic personality traits. Recurrent and persistent violence-punching and intimidating consumers and staff, with evidence of need for dominance and psychosis: has indicated that notes from sky tell him who to hit (told to psychologist, recorded 5/5/09) and has complained that people talk about him, so he hits them.”
[13] A second opinion was sought from Dr Darren Neillie and in a report dated 20 May 2009 he stated;
“Despite treatment with Sodium Valproate and Olanzapine [SGA’s] management remains extremely challenging in that when moved to a less restrictive setting and when limits are set, he has become aggressive and attempted to or has assaulted others. His explanations for the motivation in assaulting others has varied and has included possible psychotic symptoms in the form of passivity of thought. He has described experiencing intrusive thoughts of assaulting others in addition to expressing an attitude where he sees violence as being justified in order to teach those who have slighted him a lesson or in order for him to assert himself.
During my discussion with staff there were descriptions of rapid fluctuations in his mood with evidence of episodes on the unit where he would present as psychomotor agitated. There have been incidents while on the Medium Secure Unit when he has presented as somewhat elevated in mood.
There is some evidence to suggest that [SGA] may have a partially treated hypomanic episode, the presentation of which has been modified by current medications and more prolonged management in a low stimulus environment.
The picture of aggression does however need to be seen in the context of what appears to be a longer standing pattern of use of violence which extends back to his middle childhood years and developed in the context of domestic violence and abuse. Collateral information suggests that he has used violence in a number of settings over a number of years.”
[14] The MHRT approved the application for ECT on 22 May 2009. That decision was appealed to the Mental Health Court. On 3 June 2009 the Court was advised that treatment was being deferred to allow for further investigations. In a report to the Court dated 1 June 2009 Dr Stedman had advised that he considered there were three possibilities to explain SGA’s behaviours (1) an incompletely resolved mood or psychotic disorder (2) an organic mental disorder such as a personality type due to conditions such as epilepsy or a head injury or (3) personality issues. He also indicated that further neuropsychological assessments were being undertaken. The treatment had apparently not proceeded as there was a concern that there was no clear evidence that he was “psychotically depressed or in an untreated manic phase”.
[15] Given the indications that ECT was not being proceeded with, the Court allowed the appeal on 3 June 2009.
[16] In his 26 November 2009 report to the subsequent MHRT Review Hearing, Dr Davison noted more than 40 assaults since SGA’s admission and stated that he had spent 80 per cent of his time in seclusion as trials back in the ward had been unsuccessful with assaults occurring within days of return to the ward. He continued;
“Currently our own view is that [SGA] suffers from a psychotic illness characterised by a paranoid delusion. [SGA] has mentioned on several occasions that he has had an association prior to his admission with a bikie gang. He has likened his situation to being subject to an oath of silence and of duty. He agrees that this includes the risk of him being killed if he breaks his oath. Though he has always been very guarded about this relationship he has left the impression that he believes that he had to assault the people at the Gold Coast and in our care in order to prevent the consequences of breaking his oath.”
[17] The Forensic Order was confirmed at the MHRT hearing on 4 December 2009.
[18] On 4 June 2010 however the MHRT hearing was adjourned to allow a further assessment report to be prepared by Dr Donald Grant. It is clear that by mid 2010 the treating team were reconsidering SGA’s diagnosis and treatment.
[19] The Clinical Report to the MHRT dated 25 August 2010 stated;
“Physical examination, including EEG and MRI brain were normal. In view of the failure of other treatments to modify his behaviour, an application was made to the Tribunal for Electroconvulsive Therapy (to treat possible psychosis with affective features) on 22 May 2009. The ECT was appealed against at the Mental Health Court and not proceeded with after a second opinion noted that there was no clear evidence of him being psychotically depressed or in an untreated manic phase.
[SGA] developed neutropenia in September, 2009. This was believed to be medication induced. All his medication were gradually tapered and stopped by early October, 2009. He has been off medications for at 6 to 8 weeks and no evidence of mania/depression or psychosis has emerged.
There was a body of opinion in the Team that [SGA] may not have a BPAD or a Mental Health Problem as defined with MHA, 2000. This is based on the observation that his mental state has been essentially the same with or without medication. During his stay at The Park he has not consistently displayed symptoms to qualify for a psychotic or an affective episode (manic/depressed/mixed). Second opinion has been sought from by Dr William Kingswell, Consultant Psychiatrist. He believes that [SGA] may have a psychotic disorder based on the ‘un-understandable belief of proving he has to be a man’ leading to random assaults.
09/11/2009 after having been free of any evidence behavioural disturbances or psychotic phenomena for many weeks while off medication, [SGA] began to spend al day and night punching, kicking and head butting the walls, and doors of the seclusion room. He stripped of all of his clothes. This behaviour resulted in him sustaining multiple self induced injuries with severe bruising on his knees, elbows, shoulders, and forehead. He was given [M] Olanzapine and diazepam on 10/11/2009 and 11/11/2009 and his behaviour settled. Examinations through this period found him to be orientated and free of any clouding of consciousness. At subsequent interviews he has been unable to explain his behaviour.
On 08/06/2010 [SGA] commenced escorted LCT on campus with 4 staff and these progressed without incident and have progressed to once per day with 3 staff. LCT’s had also progressed to off ground which had a mixed result. Staff reported that LCT’s are difficult due to their need to be hypervigilant whilst escorting him. On 05/07/2010 whilst on LCT escorted off campus at Scarborough he made an attempt to strike the nurse unit manager (NUM) who was providing escort. [SGA] tried to dismiss this as a “joke” how ever two days later apologised and stated ‘I just like hitting people’.
An assessment was provided by Dr Don Grant on 11/08/2010. He concluded that [SGA] had no psychotic disorder at that moment and did not require detention under Mental Health Act.
As [SGA] had not shown any sign of psychosis or depression for months olanzapine was tapered and ceased. A few days later when seclusion door opened [SGA] had tried to punch a nursing staff and he was quickly restrained physically and placed back to seclusion. He again started to exhibit self-harming behaviour, thumping firsts on the door the whole night, banging his shoulder on window then his head, poured water over the floor and rolling on the wet floor, and tried to swim. When interviewed by doctors he minimized his behaviour, denied abnormal experience. Other odd behaviour included his placing slytofoam or toilete paper into his mount like a mouth guard, refused to talk, plucking out his pubic and underarm hair and placing strands of it in his nostrils, pouring coffee and water on the floor, and refusing food. These behaviours have been responsive however to firm application of the behaviour plan. He was recommended on olanzapine 5 mg nocl on 14/08/2010.”
The MHRT decision of 21 September 2010
[20] On 21 September 2010 the Tribunal thoroughly reviewed all of the material in relation to SGA and revoked the Forensic Order.
[21] In the reasons published by the MHRT on 6 October 2010 the Tribunal stated that the evidence clearly indicated that SGA had a psychotic episode in the context of mania around the time of the index offences, which continued during the inpatient admission at the Gold Coast Hospital. After admission to The Park SGA displayed aggressive and oppositional behaviour, including the assault of a co-patient and a staff member.
[22] The Tribunal stated that the current treating psychiatrist, Dr Davison’s evidence to them was that it was difficult to determine the cause of SGA’s behaviour and that the clinicians varied in their opinions as to whether SGA had a current mental illness. The Tribunal stated that Dr Davison’s current opinion was that SGA had a one-off psychotic episode but that he did not currently have a psychotic disorder or mood disorder.
[23] The Tribunal also stated that in Dr Grant’s report to the Tribunal dated 27 July 2010 he had diagnosed probable ADHD, polysubstance abuse in remission, cognitive impairment, a personality disorder, a psychotic episode in 2008, most likely secondary to drug intoxication as well as withdrawal and adjustment difficulties secondary to detention.
[24] The Tribunal noted however, that Dr Grant had concluded that SGA at that time exhibited no psychotic disorder and he did not satisfy the criteria for detention under the Mental Health Act 2000 (Qld) (the Act). Dr Grant indicated however that SGA should continue in psychiatric treatment and that he should obtain drug and alcohol counselling. He considered that the treatment would include medication and behavioural treatment to address his affective instability and temper problems. He believed that there was a high chance that further behavioural issues would arise particularly regarding aggressive behaviour. He did not consider however that those risks arose from a current mental illness.
[25] The Tribunal stated that it accepted Dr Davison’s evidence that a person can have a one-off psychotic episode in the context of substance abuse, biochemical imbalance and personality vulnerabilities. The Tribunal gave weight to the evidence that the antipsychotic medication in conjunction with the behaviour management program assists SGA to manage his behaviour in the seclusion environment.
[26] The Tribunal however concluded that SGA did not currently display any psychotic or mood symptoms without medication.
[27] In relation to whether SGA represented an unacceptable risk to the safety of himself or others, the Tribunal concluded that SGA’s aggressive and oppositional behaviours creates a risk to the safety of himself and others. However, the Tribunal considered that the evidence also indicates that this behaviour is due to exposure to and use of physical force and aggression in a number of settings.
[28] Therefore, the Tribunal concluded that the evidence established that the unacceptable risk was not due to SGA’s having a mental illness but rather was due to personality, behavioural and cognitive factors. The Tribunal concluded that the Act therefore does not have application. The Tribunal concluded that the alleged index offences occurred in the context of SGA experiencing a one off episode while manic and that this occurred in the context of SGA’s having personality vulnerabilities as well as a history of alcohol and drug use. The Tribunal concluded that SGA did not currently have a mental illness as defined in s 12 of the Act.
[29] The Tribunal considered that SGA’s aggressive and oppositional behaviours created a risk, however, the Tribunal considered that having determined that SGA did not have a mental illness s 204 (1) of the Act does not operate to prevent the Tribunal from revoking the Forensic Order. For those reasons, the Tribunal revoked the Forensic Order on 21 September 2010.
The Application for a Stay
[30] On the afternoon of 21 September 2010, the Attorney-General lodged an appeal against the decision of the Mental Health Review Tribunal and requested a stay.
[31] On 22 September 2010, the Mental Health Court granted a stay of the decision of the Mental Health Review Tribunal to ensure the effectiveness of the appeal. A further order was made requiring SGA attend for an examination and an opinion pursuant to s 422 of the Act. Dr Beech provided a report to the court dated 23 November 2010. A further report dated 20 November 2010 was also obtained from Dr Jill Reddan.
[32] The hearing of the appeal by the Attorney-General in relation to the revocation of the forensic order on 21 September 2010 was heard over two days on 3 February 2011 and 16 February 2011. A number of psychiatrists gave evidence at the hearing including Dr Davison, Dr Grant, Dr Reddan and Dr Beech.
[33] At the end of the hearing on 3 February 2011 the Court approved Limited Community Treatment for SGA including escorted leave on and off the grounds of the hospital, unescorted leave on and off the grounds of the hospital and overnight leave subject to a condition that he comply with the requirements of the authorised psychiatrist.
The grounds of appeal
[34] The notice of appeal against the decision of the Mental Health Review Tribunal lists six grounds of appeal.
1. The patient has a long history of persistent assaults and aggressive behaviour such that it has been necessary for the Mental Health Service to keep the patient in seclusion.
2. The patient’s diagnosis remains unclear. Until very recently he was diagnosed with bipolar disorder and he continues to be medicated on anti-psychotic drugs.
3. Without the compulsion of the forensic order it is unlikely that the patient will engage with any Mental Health Services or take medication.
4. The patient’s behaviour is unpredictable.
5. The patient suffers from cognitive defects which may well be the result of mental illness or intellectual disability as a result of cerebral damage caused by an acquired brain injury or drug use.
6. The patient is an unacceptable risk to the safety of others and the forensic order should not have been revoked.
Dr Davison’s evidence
[35] Dr Davison’s earlier reports as set out above were before the Court. In his updated reports dated 12 August 2010, 1 February 2011, 15 February 2011 and in his evidence to the Court Dr Davison stated that his opinions remained unchanged from those documented in his previous reports of 2010 to the Mental Health Review Tribunal and the Mental Health Court. Dr Davison stated that:
“SGA does not show any consistent diagnostic mental state examination evidence of Schizophrenia or Bipolar Mood Disorder. Whilst this observation does not exclude an underlying vulnerability to such a disorder, it does not allow me to conclude that he does have such a disorder.
I do not consider it reasonable to persist in ‘treating’ a condition that predominantly has the hall marks of a personality disorder and that otherwise can only be additionally described a possible but currently inactive bipolar mood disorder or atypical psychotic disorder, particularly when the treatment is in a secure psychiatric involuntarily treatment unit where his life choices could be severely limited over a protracted and indefinite period of time.”
[36] Dr Davison’s further report to the Court of 15 February 2011 indicated that between 4 February 2011 and 15 February 2011 SGA had five occasions of unescorted leave on and off the hospital grounds without incident or negative effect on his mental health. Dr Davison reported that no period of seclusion had been required. There were however four entries in the period of unusual or unacceptable behaviour which included being abusive to a staff member, staring and giggling as well as ongoing demanding and entitled behaviour.
[37] Dr Davison stated that during 3 formal mental state examinations “there was no observable disturbance of affect, thought form, stream or content, or evidence of auditory hallucinations. When I raised the ‘laughing to self’ behaviour from the clinical record he stated he had not been laughing to himself.” There was no evidence of an Axis 1 disorder.
[38] Dr Davison concluded:
“While one may speculate about the significance of the unusual behaviours reported on the ward by nursing staff the observations are not sufficient, even with what is known of [SGA’s] history to rule in a current diagnosis of an Axis 1 psychiatric disorder.”
The evidence of Dr Grant
[39] Dr Grant gave evidence to the Court and referred to his report of 27 July 2010. Dr Grant confirmed his view that he doubts SGA suffers from a mental illness. He stated that SGA’s aggressive outbursts and violence could exist without the need to consider a diagnosis of either a personality disorder or an Axis 1 diagnosis. He noted[1] that SGA has always been a “pugnacious aggressive man who wanted to stand up for himself, not be seen as a wimp and not be dominated by anybody”. He stated that SGA’s pugnacious style had been with him well before he became unwell and “has continued and been exacerbated by a whole range of medical, psychiatric, social factors, and I think in his case there’s a complex mix of those things”.
[1]Transcript 3 February 2011 p 36 at ll 20-40.
[40] Dr Grant considered[2] that on his review of the material in relation to SGA’s presentation in 2008 at the Watchhouse and Gold Coast Hospital it was most likely a “drug induced psychosis” with “either –combination of intoxication and withdrawal”. Dr Grant noted that when he was first seen he wasn’t thought to be psychotic rather “he was a bit grandiose, a bit irritable, but not seemed (sic) to be psychotic, but over a period of days his behaviour deteriorated until he was behaving very bizarrely in the cells”.
[2]Transcript 3 February 2011 p 38 at ll 35-50.
[41] Dr Grant considered that there was no real evidence of mania but rather there was evidence of “manic features” and that he was very confused during his first few days in hospital. He considered there was evidence of a resolving mental disorder “initially with obvious paranoia and psychotic features, but then some continuing, sort of, belligerence and aggression and confusion which gradually settled and I don’t think it’s a clear manic illness at all. There were manic features, but he was- it was a more confusing picture than that. It wasn’t simply mania.”
[42] Dr Grant stated “in my experience when you have been abusing heavily alcohol and drugs you can get very complex and unusual and difficult diagnostic pictures afterwards.”[3]
[3]Transcript 3 February 2011 p 38 l 58.
[43] Dr Grant outlined that SGA was then transferred to a Medium Secure Unit which is not an easy place for anyone. He considered that it was not surprising that someone like SGA who had difficulties with “abstract thinking and planning and who’s a bit impulsive and who has always been taught to stand up for himself and not take any nonsense, should become aggressive in that environment. And he did eventually, but it took six weeks. He then goes into seclusion and it is seclusion for 17 months.”[4]
[4]Transcript 3 February 2011 p 40 at ll 10-21.
[44] Dr Grant then referred to a paper he had provided to the Court by Dr Stuart Grassian on the “Psychiatric Effects of Solitary Confinement”. Dr Grant outlined that it was well known that solitary confinement causes all kinds of psychiatric disturbance. He said;[5]
“And I think that if you look at subsequent events, they are well explained by a combination of a man with a particular personality with issues with aggression, which he's had all his life who is - and who has limited cognitive abilities, can't really work his - work out how to - how to cope with the situation and deals with it by becoming more aggressive. And people who are locked up, talk about becoming hyper vigilant. Sounds - any sound annoys them, they become paranoid, they think everyone's out to get them, they stew a lot about why they're there and what are they being punished for et cetera. And they develop paranoid ideation about their gaolers, or their nursers, in this - on this occasion and they deal with the situation rather irrationally and they often - they can actually develop psychotic - apparently, psychotic symptoms with hallucination and odd ideas and self-harm and aggression, such as banging the walls with your head would be a fairly common symptom, in that situation. So, I don't think you have to look too far to see why this is - this has happened. And this is not criticism of the staff, because I think, you can understand how it - how it happens, but then you get into this dreadful sort of trap, of how do you get him out of it.”
[5]Transcript 3 February 2011 p 40 ll 38 to 60.
[45] Dr Grant concluded “I really don’t think he has Bipolar Disorder.” In terms of whether a Forensic Order was warranted Dr Grant stated that that question depended on whether the initial psychotic episode was a Bipolar Disorder and whether therefore “he might have an ongoing propensity to relapse”. He considered that the manic episode had resolved and the reason to keep someone on a Forensic Order would be to try and circumvent another episode of Bipolar Disorder but that it would be impossible to know when that would, if ever, occur. “I think the general principle is if someone’s been in seclusion for 17 months and in hospital for a long time you don’t throw them on the street because it’s not likely to be very successful”. He considered however that another view would be that as he hadn’t shown evidence of a psychotic condition for two years then he shouldn’t be on the order.
The evidence of Dr Reddan
[46] Dr Reddan gave a thorough history of SGA’s past psychiatric history in her report and gave evidence to the Court. Dr Reddan’s view is that there was no evidence that SGA had required specific psychiatric evaluation until May 2007, although she considers he may have manifested during his childhood an attention deficit hyperactivity disorder and/or a conduct disorder.
[47] She also considers that the history indicates he had abused alcohol, cannabis, amphetamines, cocaine and heroin at various different times. She considers his substance abuse was a significant factor in the gradual erosion of his motorcycle racing career and that eventually the professional motorcycle world would no longer tolerate SGA’s behaviour and the inherent risks it created for other riders and the image of the sport. He was admitted to the Alfred Health Care Centre on 23 February 2007 after his transfer from a medical ward. On that occasion his urine drug screen was positive for cannabinoids and opiates.
[48] Dr Reddan stated that SGA was living on the Gold Coast during 2008 when he came to the attention of the police. It is clear that he got into a fight at Surfers Paradise and he was pepper sprayed and tazered, then taken to the Southport watch house but then got into a fight with police officers. Her view is that tazering can have a considerable effect on a person.
[49] Dr reddan stated that earlier in 2008 he had been in trouble for stealing on the Gold Coast. SGA was transferred from the Southport watch house to the Gold Coast Hospital on 19 August 2008. SGA was then evaluated by Dr Julian Boulnois and Dr Morris Bersin. At that time SGA was evaluated as presenting with mania due to a Bipolar 1 Disorder. Personality dysfunction was also considered to be a very relevant factor. Dr Bersin considered that the mania continued for three weeks after his presentation and he was treated with various antipsychotic and a mood stabilizer, Lithium.
[50] Dr Reddan noted the transfer to the medium secure unit at The Park on 7 November 2008 and that during his time at The Park, he engaged in frequent aggressive behaviour. Dr Reddan considered that there was little clear evidence of a psychiatric disorder during that time but rather it was assumed that a psychosis or mood disorder was driving the behaviour. Dr Reddan, stated that large doses of medication did not assist him and that he lived in the seclusion rooms for a very long period of time due to his behaviour. Dr Reddan concluded that it became clear that SGA could control his behaviour if he wished to do so or if he had an incentive to do so.
[51] Dr Reddan then referred to the concerns raised about SGA’s cognitive functioning because of an evaluation done by psychologist Michelle Andrews in July 2009. Ms Andrews concluded that SGA’s general intelligence fell within the borderline moderate deficit range. Dr Reddan concluded that while she was not suggesting that SGA has not sustained some impact on his cognitive performance from a number of head injuries and from drug use, she considered that an uncritical acceptance of the interpretations of psychological testing has been shown repeatedly to be unwise.
[52] Dr Reddan confirmed that an MRI performed on 26 February 2009 was normal. Dr Reddan concluded that SGA has significant personality dysfunction, with antisocial and narcissistic personality traits. She stated that there is clear history of polysubstance abuse, including abuse of cocaine, various forms of amphetamines, opiates, cannabinoids and alcohol.
[53] Dr Reddan considered that the episode with which SGA presented in August 2008 may well have been a substance-induced mood disorder, with manic features. Alternatively, the episode may have been due to mania as part of Bipolar 1 Disorder. She stated that –
“There has been no other clear presentation of mania or of a significant depressive disorder and thus there is insufficient information to conclude that [SGA] suffers from Bipolar 1 Disorder. There is also insufficient evidence to firmly conclude that [SGA] has sustained brain damage from any cause.
In relation to the offence allegedly committed on 15 December 2008 and 18 May 2009 I can find no evidence that [SGA] was suffering from a mental disease sufficient to deprive him of any of the three capacities specified in Section 27 of the Criminal Code of Queensland at the relevant time and thus I cannot recommend to the court a defence of unsoundness of mind in relation to these offences. Furthermore, he is fit for trial.
On 19 November 2010, I could find no evidence that [SGA] is suffering from a major mental disorder. It is likely that his assaultive behaviour whilst he has been in the Medium Secure Unit at The Park has been related to a complex interaction between his personality style and the contingencies and nature of a unique environment. There have been periods of time where he has not been administered psychotropic medication and there is no indication for him to be administered such medication but it is likely to have been continued for a number of reasons including industrial ones.”
The evidence of Dr Beech
[54] Dr Beech prepared a report to the Court dated 23 November 2010 and gave oral evidence to the Court. Dr Beech stated that SGA was by 2008 living on the Gold Coast and was unemployed and pursuing a desultory lifestyle. During that year he came into contact with the law and those offences included stealing and breaches of bail. In August 2008 he assaulted, without provocation, a man in a park and that assessment at that time showed an earlier irritability which, by the time of his arrest, had progressed to overt psychosis with symptoms of mood elevation and persecutory thinking.
[55] Dr Beech concluded that it is possible that the earlier disturbances in 2008 were a prelude to the manic episode in August 2008. Dr Beech considered that although there were concerns that the symptoms were the product of substance abuse, SGA had denied this and a urine drug screen a few days later was negative.
[56] Dr Beech indicated that after his transfer to The Park in December 2008, SGA has proven to be a highly problematic patient with in excess of 60 incidents of assault or threats to assault staff and other patients. That necessitated his placement in seclusion in late 2008.
[57] Dr Beech stated that despite medication, attempts at leave, and behavioural management plans, SGA initially proved resistant to any trials of removal from seclusion. Throughout that time, Dr Beech stated it was very difficult to formulate and explain SGA’s behaviour. At times it seemed to be simply intimidatory with moments where he has deliberately stalked other patients and menaced them. At other times, it was simply a way to relieve boredom. On some occasions it was a reflection of irritability and frustration. At times it was a reflection of persecutory ideation.
[58] Dr Beech noted that it was ultimately considered that despite earlier diagnoses of mood or psychotic illnesses, any mental illness which may have been present had fully resolved and that his behaviour reflected a simple personality disturbance on the ward. Dr Beech referred to the fact that when he was discharged from hospital in September 2010 after the MHRT revoked the Forensic Order his behaviour has been good.
[59] Dr Beech concluded that SGA is a complex presentation. In his view, there are three possibilities.
[60] Firstly, that SGA has a mental illness and that this mental illness probably reflects some form of Schizo-Affective Disorder noted for persistent irritability and aggravated by intermittent persecutory ideation. Dr Beech considers that the clinical material is littered with allusions and references to psychotic phenomena. This has included times when SGA has appeared expansive, elevated or disinhibited. He has voiced ideas of reference and persecution, as well as delusions or ideas of grandeur and jealousy. He has, at times, spoken of bikie gangs, a need to prove himself as a man, and indeed secret oaths and messages.
[61] None of this, Dr Beech considered, has been consistent and at times he has pulled back from these beliefs and asserted that he was joking. Dr Beech concludes that the symptoms have not responded well to standard treatments.
[62] Dr Beech considered that the second possibility is that SGA has significant personality disturbance. This disturbance could be seen as someone with impulsive, belligerent and narcissistic traits who uses intimidation to get his own way and who responds poorly to restrictions and rules. He considers that SGA is a man easily frustrated by restraint, who seeks to attack others to relieve boredom or to assert his masculinity. Over time these difficulties, having arisen from childhood, ADHD and adolescent narcissism from his motorcycle prowess, have been further aggravated by cognitive impairments from motorcycle accidents and drug use. Earlier frank psychosis in 2008 was simply the result of drug-induced psychosis.
[63] The third possibility is in fact a combination of the first two possibilities. Dr Beech concluded that it was his opinion that SGA has features of all of the three possibilities. Dr Beech concluded that he believed:
“[SGA] does have an underlying mental illness notable for its affective qualities of irritability, aggravated by abnormal thinking that has included persecutory ideation and at times, delusional beliefs and possibly, perceptual abnormalities. The matters which lead me to consider this are:
•what appears to be a significant social deterioration throughout 2008;
•the frankly psychotic manic presentation in 2008 with perhaps a prelude of disinhibited behaviours earlier that year;
•repeated presentations of irritability, expansiveness, psycho-motor agitation, and disinhibition;
•repeated episodes of odd behaviours; and
•repeated references to what appears to be psychotic thinking.”
[64] Dr Beech’s evidence was that taken in its entirety, this presentation is more than a simple personality disturbance. He accepted that he is now cognitively impaired compared to his pre-morbid state and that much of his behaviour may be the result of perhaps now an entrenched personality and behavioural style which has probably been fostered by the necessity of his detention.
[65] Dr Beech considered that it was more likely that SGA had an underlying mental illness now in remission. While he believed that he had a mental illness he considered that some of his disturbance is related to the interpersonal interactions with others, which does not necessarily arise from his mental illness. He stated that some of the improvement that has occurred over more recent months probably now reflects the passage of time, continued exposure to antipsychotic medication, and deliberate attempts by SGA to control himself.
[66] He overall considered that SGA does have an underlying mental illness which has throughout his period of detention destabilised him but agreed that it could be cogently argued that this is simply a deterioration and regression in a narcissistic antisocial man who up until this point in time has not had significant restrictions or restraints placed on him. However he thought that his behaviour in hospital has been excessive and his affective disturbance has been much more than Dr Beech would have considered likely in someone who is simply narcissistic and antisocial, albeit with a concrete thinking style.
[67] Dr Beech considered that SGA is at high risk of further assaultive behaviours if he were to be released into the community at this stage without treatment and supervision. Although he has now behaved himself quite well within the hospital setting, this self-control occurs in a situation where he is highly motivated to be of good behaviour, where he remains supported by vigilant nursing staff in a structured environment, and where he continues to take medication. He stated that in the absence of supervision, structure and medication, it was his view that the risk of assault is likely to significantly increase and that it would exponentially increase if SGA were to resume drug use.
[68] Dr Beech’s recommendation was that SGA's release to the community should be graduated. He has however shown that he has now been able to control himself within The Park and the next stage of his management would be a transfer to an open ward within a metropolitan hospital. There he could be observed on the ward and if and when his behaviour is deemed to be suitable, he could be allowed appropriate limited leave into the community. From there he could be transferred to a community treatment order with ongoing supervision by a community mental health service.
[69] He also considered that he would require continued use of antipsychotic medication, continued assertive community case management, and abstinence from illicit substances. Dr Beech stated that if it is accepted that SGA's primary condition is a personality disorder, then he would suggest that it was still the mental illness of a drug-induced psychosis which led to the original Forensic Order. The management of the drug-induced psychosis is the judicious use of medication and the complete abstinence from illicit substances. I believe therefore that his management would be much the same.
The views of the assisting psychiatrists
[70] I will outline the views of the assisting psychiatrist in some detail in my conclusions set out below and will only summarise their advice in short form at this point.
Dr Varghese
[71] In summary Dr Varghese noted that despite the complexity of SGA’s case, all four reporting psychiatrists are in agreement that he is now well. He advised that it was most likely that SGA’s behaviour at the time of the offences could be explained by a bipolar disorder. He indicated that a manic syndrome does not need to be accompanied by psychotic symptoms and that it only takes a single episode of mania to diagnose bipolar disorder. Dr Varghese advised that the high-risk period would be the next 6 months and he indicated a forensic order should be reinstated with limited community treatment.
[72] Dr Varghese stated[6]:
“My advice, your Honour, is that while the patient is currently in remission - by remission, I mean the absence of symptoms, the proposition that he never had a psychiatric illness other than a drug induced state and that any - the subsequent picture is iatrogenic or sociogenic, is unlikely. The patient probably does suffer a bipolar disorder and you only need a single episode of mania to diagnose bipolar disorder because it's inherent in the illness that a manic disorder will predict future episodes.
He's now in remission, as I - to repeat myself again. Whether that remission is a result of the natural history or a result of treatment, is not clear. My impression, looking overall at the picture, is that the remission is part of the natural history and medication has had very little effect other than, perhaps, controlling some of the symptoms. What this means, is that he, at some stage in the future, is likely to have another episode”
[6]Transcript 16 February 2011 p 87 ll 1-20.
Dr McVie
[73] Dr McVie essentially agreed with Dr Varghese’s advice. She indicated that there was no collateral evidence to indicate SGA’s psychotic episode in August 2008 was a result of any particular substance but rather that the subsequent progression of the illness is more in keeping with an independent bipolar illness manic phase. She advised that a forensic order with limited community treatment is appropriate and that SGA should be carefully monitored for at least the next 12 months.
The appeal
[74] The Court’s powers on Appeal are set out in s 325 of the Act;
“325 Appeal powers
(1) In deciding the appeal, the Mental Health Court may confirm or set aside the decision appealed against.
(2) If the Mental Health Court sets aside the decision appealed against--
(a) the court may make a decision the tribunal could have made on the review or application; and
(b) the decision is taken, for this Act (other than this part), to be that of the tribunal.”
[75] Pursuant to s 327 this Court’s decision is final and cannot be appealed. As Wilson J held in Re AK[7] the appeal is properly described as an appeal by way of rehearing which means that matters are determined by reference to the state of affairs which exist at the time of the rehearing and no error needs to be shown in the decision by the MHRT before redetermining the matter.
“[13] Many statutory provisions conferring appellate powers, even in the case of appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; that is, if an error of fact or law occurred below, the appellate court will try the case again on the evidence used below, together with such additional evidence as it thinks fit to receive: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 - 204.
[14] However, I am satisfied that it was not the Legislature's intention that this Court's powers to decide appeals from the Mental Health Review Tribunal should be so restricted. Such an appeal is from an administrative body to a court, and in such circumstances there is a presumption that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Re Coldham and others; ex parte Brideson (No 2) (1990) 170 CLR 267 at 273 per Deane, Gaudron and McHugh JJ. The decisions of the Mental Health Review Tribunal against which appeal lies to this Court (for example decisions on the review of involuntary treatment orders, forensic orders and fitness for trial) all concern a person's mental condition, which is not necessarily static. Further, the express words of section 333(2) ‘unaffected by the tribunal's decision’ are an indication that the Court need not search for error by the Mental Health Review Tribunal before redetermining the matter.[15] I have concluded that it is for this Court to determine the appeal on the facts and law applicable at the date of the appeal and that it is not necessary for the appellant to demonstrate error by the tribunal.”[7][2002] QMHC 003.
[76] Accordingly in determining this appeal consideration will be given to the material which was before the MHRT on 21 September as well as the additional reports and evidence which have become available since the Tribunal hearing in September 2010.
Should the Appeal succeed?
[77] On the evidence before the MHRT it clearly considered there was good reason to make the decision they did to revoke the Forensic Order. The MHRT made a very careful and considered analysis of the evidence before it. The evidence as it stood at that stage indicated that the preponderance of psychiatric opinion favoured a view that SGA was not at that point in time suffering from a mental illness. The Tribunal stated that it accepted Dr Davison’s evidence that a person can have a one-off psychotic episode in the context of substance abuse, biochemical imbalance and personality vulnerabilities. Whilst the Tribunal noted Dr Davison’s view that “Bipolar Disorder in remission remains a possibility” the Tribunal ultimately accepted Dr Davison’s preferred conclusion that SGA had a one-off psychotic episode but that he did not have a current psychotic disorder or mood disorder.
[78] Accordingly the Forensic Order was revoked by the MHRT on the basis of that evidence.
[79] Since the hearing before the MHRT on 21 September 2010 two further specialist reports have been obtained from Dr Beech and Dr Reddan. Oral evidence over a period of two days was also adduced from those psychiatrists and from Dr Davison and Dr Grant. The Court has also had the assistance of the advice from the Assisting Psychiatrists who have been of considerable assistance in identifying and exploring the complex issues which have been at play in this case.
[80] I should also make it clear that I consider that it is particularly commendable that SGA’s treating team at The Park considered that it was appropriate to review the working diagnosis of Bipolar Disorder and to re-evaluate the treatment regime. There should be no criticism that the views of individual psychiatrists or the treating team should change over time. The treating team have appropriately explored all possible options in what all of the psychiatrists consider to be a complex and difficult case where there is clearly a divergence of opinion.
[81] There is no dispute that SGA had a mental illness at the time of the August 2008 offences. Furthermore I agree with the views expressed by Holmes J (as she then was) in Re AKB[8] that it does not amount to an attack on the original finding to consider whether the condition continues to exist. Her Honour continued;
“[24] In my view, although one starts from the premise that the patient had the mental illness or intellectual disability in the first instance, one must also have regard to his current state; because an illness or disability which no longer exists can hardly give rise to a present risk. A construction which precludes detention in the absence of any existing illness or disability is, I think, consistent with the purpose of the Act. And there is nothing in s 204 which makes it incumbent on an applicant patient to show how it is that his condition has changed from what was found by the tribunal or court making the forensic order; although, of course, his case may be considerably more convincing if he does.
[25] I do not think that the appellant’s argument carried any necessary implication that the original decision was wrong. Rather, as he was entitled to do, he invited attention to the expert opinion as to his current mental state.”[8][2005] QMHC 5 at [18].
[82] Accordingly the only questions for this Court are therefore:
(i) Does SGA currently have a mental illness?
(ii) Does he require a Forensic Order?
[83] There is no doubt that SGA is currently well. All four psychiatrists indicate that there are no current symptoms of psychosis. I agree however with Dr Mc Vie that;[9]
“[SGA] clearly still has absolutely no insight into the nature of his psychosis at the time of the offence of August ’08 or the role of the illness in the index offence...its very clear from reading that that the offence was psychotic in nature, and I think its very important that SGA understands that.”
[9]Transcript February 16 p 89 l. 6.
[84] Furthermore the file from the Gold Coast Hospital does indeed give a very clear description of a psychotic episode in August 2008. As Dr McVie noted;[10]
“The file from the Gold Coast Hospital gives a very clear description of a psychotic episode in August 2008 and the description of the progression of this illness. Although, as Dr Reddan said, the notes aren't perfect, the description is really consistent with that of a manic illness at that time. Some fleeting symptoms of psychosis at the beginning and then progressing to irritability, grandiosity and intermittent behavioural disturbances, though he did appear to respond quite well to the Depot, Zuclopenthixol and Lithium prior to his transfer to medium secure.”
[10]Transcript February 16 p 88 ll 6 -13.
[85] The real controversy in this case is whether when he had the occurrence of the mental illness in 2008 it was a one off episode or whether it is a mental illness which continues, although in remission, and is likely to recur.
[86] I have carefully considered the very helpful submissions from Counsel and noted the very persuasive argument from SGA’s Counsel, Ms Forrester.
[87] However, having considered all of the evidence and taken into account the views of the Assisting Psychiatrists I consider that the evidence supports a finding that SGA does have a mental illness most probably a diagnosis of Bipolar Disorder. Such a diagnosis is clearly a mental illness within the definition of ‘mental illness’ in s 12 of the Act. I consider that whilst SGA has an underlying mental illness it is now in remission given that there are no active symptoms currently present.
[88] Ultimately in coming to this view I have preferred the view of Dr Beech which essentially has the support of both Assisting Psychiatrists.
[89] Central to my conclusion is my view that I consider it unlikely that SGA was suffering from the withdrawal or the effect of drugs in August 2008. Whilst SGA does have a history of drug use he denied drug use at the time of the offences. Furthermore the urine drug screen was negative when it was taken some 4 days later. There is in fact no objective evidence therefore to indicate substance use in August 2008. Indeed as recently as the MHRT hearing in September 2010 SGA “was firm in his view that he had not used illicit substances for some years prior to the alleged offences.”
[90] I also note Dr McVie’s view that he had a ‘prominent’ irritability that continued for a lengthy period of time and that this aspect is “not commonly seen in drug induced psychoses with grandiosity pressured speech”.
[91] Furthermore as Dr Varghese states one would expect remission much earlier than the three weeks it took for the hypo-manic symptoms to subside if it were simply to do with the impact of drugs.
[92] I also accept Dr Varghese’s advice that if the manic episode was precipitated by drugs and lasted several weeks
“..then that is really a good indication that there is Bipolar Disease. The data from the clinical notes is that he was in a manic or hypo manic state for some weeks and I am then drawn to the view that there is a primary affective disorder, which could be called bipolar disorder or previously called manic depressive illness.”
[93] I also agree with Dr Beech that SGA’s file material is littered with allusions and references to psychotic phenomena. I note Dr Davison’s update report of 15 February once again makes the same allusions and whilst I agree that there is insufficient evidence to draw conclusions as to an Axis 1 diagnosis on that basis it is a further factor which confirms an ongoing presentation. Dr McVie also considers that there is clear evidence of psychosis in the reports in the file material, particularly “ideas of reference, auditory hallucinations, and even formal thought disorder at some points.”
[94] In my view Dr Neillie’s assessment in May 2009 some 9 months after his index offences needs to be given considerable weight. He states;
“In thought content he denied persecutory beliefs, he denied beliefs of being controlled by others however he did admit at one point to believing that others could read his thoughts however on further questioning he became guarded. [SGA] described experiencing intrusive thoughts about assaulting other people, he denied homicidal thoughts. He stated he would think about hitting others whom he believed had slighted him or had treated him unfairly and he stated that to hit others was merely being ‘a man’ On further exploration, although he described these thoughts as ‘uncomfortable’ and that he did not want to experience them they had an ego-synotic quality. He described a sense of ‘relief’ following the discharge of aggression.”
[95] I consider that this assessment after 9 months is significant and confirms in very strong terms the presence of a mental illness at that point in time. Dr Varghese also noted[11] that even if there were no actual psychotic symptoms present at that time his view was that:
“...a manic syndrome does not have to be accompanied by psychotic symptoms. In fact, hypo maniac states and even to the severe extent of being mania, more often than not, do not have psychotic symptoms. It’s mainly a change in mood and if the change of mood is severe, then there are secondary psychotic symptoms. The change of mood can occur without psychotic symptoms and sometimes the change in mood will manifest entirely with irritability. I note again, the deterioration-further deterioration when his medication was ceased and resulting in deliberate self harm and this episode of deliberate self harm apparently improved when medication was resumed. Again, suggesting to me, that the behaviour leading to seclusion was a result of some affective syndrome.”
[11]Transcript February 16 p 86 ll 40-50.
[96] It is also significant that there was a serious deterioration in SGA’s mental state in November 2009 six weeks after his medication was ceased. He engaged in serious self harming behaviours over a number of days. He had been in seclusion for a period of weeks at that time and his medication had been ceased due to the development of neutropenia.
[97] I note the submission that it is the seclusion environment which is causing him to act out aggressive behaviour which would not occur in other environments. I accept Dr Grant’s advice that seclusion can have severe psychological consequences on a person however it would seem to me that SGA’s presentation cannot be explained only on that basis. It is clear that SGA was reasonably settled on his transfer to The Park and his aggressive behaviour necessitating seclusion in fact occurred before any seclusion occurred. Furthermore at times he was settled on the ward for a couple of days after he was removed from seclusion and then became aggressive. I can see no firm evidence that seclusion was the actual trigger for his aggression or that it can fully explain his behaviours. It would seem to me that there is clear evidence of aggression independent of seclusion and as Dr Neillie opined[12] the motivation for his aggression is multifactorial and that “in addition to a possible affective disorder there are personality and cognitive factors which contribute to the aggression”.
[12]Report dated 20 May 2009.
[98] I also agree with Dr Varghese’s view that “seclusion for such a long period of time because of aggression is more likely to indicate some underlying persistent grumbling hypomania, than behavioural disorder-pure behavioural disorder in the context of personality disorder”. Similarly Dr McVie’s advice[13] was that “personality factors may have contributed to his prolonged excessive seclusion but it really didn’t explain the extent or need for seclusion......in these cases it’s more likely than not that there is an underlying illness that results in the need for seclusion.”
[13]Transcript February 16 p 89 ll 35-39.
[99] Ultimately I am satisfied that SGA currently has a psychiatric illness.
Is a Forensic order required?
[100] Given that I have concluded that SGA is currently suffering from a mental illness the question remains as to whether a Forensic Order is required.
[101] The advice of the assisting psychiatrists as well as Dr Beech and indeed Dr Grant is that a Forensic Order should remain in place at least for a short period. As Dr Varghese notes SGA has only relatively recently ceased all medication but it is likely that he will have another episode. When this will occur cannot be predicted but because he has had a manic episode, then the possibility of subsequent manic episodes or depressive episodes is quite high. In addition if he has a schizoaffective disorder, as has been suggested, then the possibility of recurrence, particularly if he's without medication, is more likely and is indeed likely to be earlier in Dr Varghese’s view.
[102] Dr Varghese’s view was that it would be unwise not to keep SGA under some sort of medical oversight for some time with the high risk period being in the next six months. He considered that there should be a Forensic Order but that there should be limited community treatment, including overnight and that the treating psychiatrist have the discretion to allow him to live in the community. In effect to allow him to be discharged from the hospital. Dr Varghese did not see any benefit in SGA being transferred to the Gold Coast Hospital inpatient service and considered that his discharge should be planned from his current service. Dr Varghese noted that how long the forensic order continues is of course, a matter for the Tribunal, but if SGA remained well for six months then his view was that it would be “difficult to justify continuing it.”[14]
[14]Transcript 16 february 2-87 l 45
[103] Dr McVie similarly considered a Forensic Order was required but was also concerned that he had only been well for a couple of months and that it was too early to say whether there would be a relapse of symptoms. Dr Mc Vie considered careful monitoring for the next six to twelve months was required. Community treatment was also endorsed with the recommendation for a suitable residential placement. Dr McVie also considered there was a need for programs to address his drug and alcohol abuse.
[104] Accordingly I consider that SGA currently has a mental illness. I also consider that his mental illness poses a significant risk to his safety and that of others of if he is discharged from a Forensic Order without monitoring in the first six to twelve months. Given his serious history of assaults as well as his aggressive and oppositional behaviours I am satisfied that this creates a risk to the safety of himself and others. I consider that in the absence of supervision, structure and medication, the risk of assault is likely to significantly increase. I also consider that the risk would increase further should SGA resume drug use.
[105] Therefore not only do I conclude that SGA has a mental illness I also conclude that a Forensic Order is required.
[106] I therefore allow the appeal.
[107] The Forensic Order of 17 December 2008 is reinstated and there will be Limited Community Treatment in the terms of Exhibit 1.
Exhibit 1:
CONDITIONS OF LIMITED COMMUNITY TREATMENT
That he comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
That he must not use alcohol unless permitted to do so by the authorised psychiatrist; and
That he abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;
That he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
Escorted (on and off grounds of the hospital):
That he remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; and
For the purposes of the limited community treatment, he comply with the directions of the nominated staff member/s for the duration of the limited community treatment.
Unescorted (on and off grounds of the hospital):
That he return to the ward at the time specified by the authorised psychiatrist.
Overnight:
That he reside at a place approved in advance in writing by the treating psychiatrist;
That he attend all follow up appointments and in-patient care as authorised by the treating psychiatrist;
10. That he return to the ward at the time specified by the authorised psychiatrist after each night of overnight limited community treatment.
More than Overnight:
11. That he reside at a place approved in advance in writing by the authorised psychiatrist;
12. That he attend all follow up appointments and in-patient care as required by the treating psychiatrist.
4
0