Re SHA

[2012] QMHC 8

MENTAL HEALTH COURT

CITATION:	Re SHA [2012] QMHC 8
PARTIES:	APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING NO:	0241/11
DELIVERED ON:	Ex temp reasons delivered on 31 January 2012 Written reasons 23 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2012
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr F T Varghese
FINDINGS AND ORDERS:	The appeal is dismissed The decision of the Mental Health Review Tribunal dated 26 July 2011 is confirmed.
COUNSEL:	L Syme for the Attorney-General J Tate for the Director of Mental Health J Briggs for the defendant
SOLICITORS:	Crown Law for the Attorney-General Crown Law for the Director of Mental Health Legal Aid Queensland for the Defendant

ANN LYONS J:

The appeal

1. This is an appeal by the Attorney-General against the decision of the Mental Health Review Tribunal (MHRT) dated 26 July 2011 in relation to SHA.

1. The MHRT revoked the forensic order on that date.

1. In the notice of appeal the reasons for the appeal indicate that the evidence before the Tribunal did not support the finding that the patient was no longer an unacceptable risk to the safety of herself or others. Furthermore the index offence included offences of significant violence including grievous bodily harm and assault occasioning bodily harm. The appeal notice also stated that the recent CIFOS Assessment also contained contradictory statements regarding the risk posed by the patient.

1. The notice also indicated that the treating team contended that the patient did not suffer from a mental illness, whereas the body of evidence before the Mental Health Court was that there was a mental illness.

1. Essentially the appeal indicates the forensic order should not have been revoked on the evidence before the Tribunal.  Ms Syme also argues that there was a miscarriage of justice as the (MHRT) did not have the full reports of Dr McConnell or Dr Alexander. Neither did it have an independent report.  Ms Syme also raised concerns that the report of the Forensic Psychologist was based on collateral information only and not on an interview with SHA.   

1. I made orders and gave short reasons in relation to the determination of this reference on 31 January 2012 and indicated I would publish more extensive reasons at a later date. These are those reasons.

The forensic order

1. SHA was placed on a forensic order after a finding of unsoundness of mind in relation to three counts of assault of a correctional officer on 15 September 2008 and one count of common assault on 12 November 2008.

1. She was also found permanently not fit for trial in relation to a further 8 charges which included breach of probation, wilful damage, serious assault and assault occasionally bodily harm, with the charges spanning a period from June 2008 until September 2009.  

1. At the time of the initial hearing in this court it is clear that was still in rehabilitation and the picture was unclear. 

Should the forensic order be confirmed?

1. An appeal to this court from a decision of the Tribunal is an appeal by way of rehearing and no error needs to be shown in the decision below. The question for this court is whether, on the material before the Tribunal and the material which has since become available to this court, a forensic order should be revoked.

1. The court can make any order that the Tribunal would have made. In considering the forensic order review the Tribunal, pursuant to s 203(1) of the Mental Health Act 2000 (Qld) must decide whether to conform or revoke the forensic order. Section 203(6) provides that in making a decision the Tribunal must have regard to the following:

(a)         the patient’s mental state and psychiatric history;
(b)         each offence leading to the patient becoming a forensic

patient;

(c)         the patient’s social circumstances;
(d)        the patient’s response to treatment and willingness to

continue treatment.

1. Importantly, s 204(4) provides that the Tribunal must not do either of the following unless it is satisfied, on the material before it, that the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability: (a) revoke the forensic order for the patient; or (b) order or approve limited community treatment for the patient.

1. In the reasons for the decision the MHRT outlined the history of SHA’s mental illness. In particular, it outlined that she had a diagnosis of schizophrenia when she was 14 in the context of heavy cannabis abuse. There were numerous further admissions to the Mental Health units in the context of polysubstance abuse. In September 2009 she suffered a hypoxic brain injury and spent a long period of time in Rehabilitation Services.

1. The report by her treating psychiatrist to the MHRT, which was signed by Dr Agnew Alexander dated 13 July 2011, indicated that SHA does not have a mental illness and that previous episodes of psychosis occurred in the context of epileptic seizures. Dr Alexander indicates that her mental state is stable and that she demonstrates no perceptual disturbances.

1. The evidence before the MHRT and now this Court is that Dr Alexander considers that the only diagnosis SHA has relates to her cognitive and physical disabilities.

1. SHA has lived in the community since her discharge from Rehabilitation Services in 2010. She was discharged from an involuntary treatment order on 8 January 2010. On the basis of that evidence the Tribunal was satisfied that SHA does not currently have a mental illness and instead found that she had an intellectual disability resulting from the acquired brain injury which was particularly manifested by short term memory deficits.

1. The evidence indicates that SHA currently lives in the community with her mother who provides special care to her. She attends rehabilitation and receives a support package from Disability Services Queensland. She has considerable restrictions due to her physical disabilities and wears a balance belt and body brace.  She clearly receives a high level of support given her physical limitations. She has regular contact with health professionals and government agencies that provide support.

1. In terms of her response to treatment and willingness to continue treatment it is clear that at present the only treatment SHA receives is in relation to epilepsy and dystonia and she does not take any prescribed medication for her mental heath. Nor is it the treating team’s opinion that she requires it. Dr Alexander indicated that he still see her regularly even though there was very little input required into her mental heath.

1. The MHRT considered that SHA displays no symptoms of mental illness whilst noting the serious offences leading to her becoming a forensic patient. The MHRT noted in particular that the charge of grievous bodily harm in 2008 occurred in the context of intoxication and cannabis use. SHA had clearly punched the complainant in the face after being asked to stop swearing. The victim required surgery for the insertion of a permanent titanium mesh plate into her left eye socket. SHA reported hearing voices for several weeks prior to the incident and was non-compliant with medication at the time.

1. The damage to property in August 2008 occurred whilst SHA was in custody when she peeled paint from the walls and scratched her name into the walls of the watch house. The charges in relation to an assault of a Correctional Officer occurred in September 2008 when she was in custody and asked to return to her cell. She reports hearing women threatening to harm her mother and lashed out violently at one of the Corrective Services officers and assaulted the other two when they went to the first officer’s aid. She bit one of the officers on the leg.

1. A further charge of assault occasioning bodily harm occurred in September 2009 when she assaulted an acquaintance by punching her with a closed fist.

1. The reports of Dr Alexander and Dr McConnell were considered in depth at the MHRT hearing.

1. It would seem clear that, at the time of the hearing and since that date, SHA was not experiencing any symptoms of a mental illness and had been symptom free since 2009. She has received no psychotropic medication since the date of her hypoxic brain injury for psychological symptoms. 

1. The reports also indicated she was not a risk of harming others.

1. The most recent report of Dr Alexander and Dr Alexander’s oral evidence also to this Court indicates that SHA is no longer a risk.  There have been no instances of drug use and she is heavily reliant on her mother for all physical care.  SHA cannot walk without assistance and cannot really use her hands.  She also has deficits in her short-term memory and has trouble speaking and cannot readily be understood in a social situation.

1. Dr Alexander also does not consider that there are any risk factors of violence currently indicated and stated that SHA’s insight into this has improved. 

1. Dr Alexander also confirmed that he has seen no evidence of the symptoms of a mental illness.  He considers that SHA’s main difficulties are neurological and he considers that a forensic order would not have any benefit because SHA already has multiple agencies involved in her care. 

1. Dr McVie advised that following SHA’s significant anoxic brain jury in September 2009, the clinical picture has now changed dramatically to that of a person with a significant acquired brain injury with significant physical and cognitive disabilities. Dr McVie also indicated that at the time of the initial hearing she was still recovering from her injury and the long term outcome was not clear.

1. Dr McVie advised:

“Having regard to the update report of Dr Alexander, the oral evidence today, the reports of Dr McConnell and the CIFOS report I would advise that her clinical picture now is significantly different to what it was at the time of the offending.  Her risk of violence now is significantly changed and due to her physical disabilities and her need for intensive care by her mother and nongovernment support agencies, Disability Services, her whole lifestyle has changed and to add to that, the cognitive deficits that Dr Alexander's talked about, the likelihood of this woman being involved in the type of offending that she was involved in prior to June 2009 I would advise is extremely low.

I would advise that she's being well cared for by her current treating team.  They do appear to be considering her history in great detail and observing her very closely continuing her in case management.

Having regard to the fact that there have been no psychotic symptoms, at least in the last 18 months, she's not on any anti-psychotic treatment, I note the anti-epileptic treatment came up and while it might have some protective factor if her previous psychosis was related to an organic brain condition, it's not commonly considered to be protective of the level of psychosis that she presented prior to her brain injury.  Also, the fact that she's not seeking substances and is substance free is a very good protective factor.

Overall I would advise that the Tribunal's decision to revoke the Forensic Order was appropriate and she is unlikely to        present a significant risk to the community or to herself due to either a psychotic illness or a cognitive disability at this point in time.”

1. Dr Varghese indicated that SHA had a long psychiatric history prior to her acquired brain damage, in his view she probably had an intermittent drug induced psychosis or borderline personality disorder or even a psychotic illness such as schizophrenia or a schizoaffective illness. He continued:

“The important point, however, is what is her current state and her current state is essentially a neurological condition with epilepsy and acquired dementia, with problems with her short term memory, quite extensive cerebella parietal lobe and basal ganglia damage leading to severe physical disability.

The treating question is if she did have schizophrenia or schizoaffective psychosis in the past, as diagnosed from time to time on reasonable grounds, what has happened to that illness?  It's not entirely inconceivable that acquired brain damage could in fact alter the cause of her psychiatric illness and in fact bring it into remission.

A fairly old observation has been that in some people with schizophrenia, what used to be called dementia praecox following severe head injury, they were observed going into remission from their psychosis, an observation that lead to fairly drastic treatments in some cases, such as extensive use of leucotomy.

Also another observation which is more recent is that if you observe people with schizophrenia long enough and all day, a significant proportion of them develop dementia to a greater extent than the general population by quite a significant percentage and as the dementia steps in, the psychosis seems to burn out.  That's again quite an old observation.  Another observation is that affective psychosis, recurrent type, seem to go into remission once there's an onset of the dementia.

I think currently the clinical situation is essentially one of a neurological disorder.  There is in fact no mental disorder - mental illness in the sense of an illness of the mind and I agree with Dr McVie that the patient's current treatment needs are being adequately met.  There seems no good reason to have a Forensic Order in the absence of a mental illness.”

1. In my view therefore the evidence before the MHRT and indeed before this court is such that I am satisfied that the criteria for the revocation of the forensic order has been satisfied.  There is clearly no current evidence of a mental illness and even if such a diagnosis was established there is no evidence that she represents a significant risk to anybody given her physical frailty. 

1. Therefore, the appeal is dismissed and the decision of the MHRT is confirmed.