Re SLC

[2015] QMHC 1

MENTAL HEALTH COURT

CITATION:

Re SLC [2015] QMHC 1

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF SLC

FILE NO:

No 0308 of 2014

DELIVERED ON:

29 May 2015

DELIVERED AT:

Mental Health Court at Brisbane

HEARING DATE:

20 May 2015

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr Lawrence

Dr Sundin

ORDER:

1.   The appeal is allowed and the decision of the Mental Health Review Tribunal is set aside.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the respondent was charged with murdering his wife – where respondent had a mental illness at the date of the index offence – where the respondent’s treating team had diagnosed him as having a major depressive order (in remission) – where the respondent’s reporting psychiatrist had diagnosed him as having a delusional disorder/depression – where the respondent had been on a forensic order for an extended period – where the Mental Health Review Tribunal had ordered that the forensic order be revoked – where the appellant appealed that decision – whether the respondent was such a risk to the community or to himself that the decision should be set aside

Mental Health Act 2000 (Qld)

COUNSEL:

A L Meisenhelter for the appellant
S J Hamlyn-Harris for the Director of Mental Health

J D Briggs for the respondent

SOLICITORS:

Crown Law for the appellant
Crown Law for the Director of Mental Health

Legal Aid Queensland for the respondent

1. BODDICE J: By Notice of Appeal filed 24 December 2014, the Attorney-General for the State of Queensland appeals a decision of the Mental Health Review Tribunal, dated 2 December 2014, revoking a forensic order in relation to SLC.  The ground of appeal is that, on the evidence before the Tribunal, it could not have been satisfied the respondent did not represent an unacceptable risk to the community or himself, should he no longer be subject to the forensic order.

   Background

2. The respondent was born on 23 September 1945.  The index offence occurred on 19 November 2003.  The respondent allegedly strangled his de facto wife of 29 years by hand and with a ligature.  On 7 June 2005, he was placed on a forensic order after being found of unsound mind in relation to a charge of murder. 

3. The respondent was transferred from a correctional centre to the High Secure Inpatient Service, The Park, in May 2004.  He remained in that facility after being made subject to the forensic order.  In 2006, he commenced his transition into the community.  He has been under the care of mental health services based at the Princess Alexandra Hospital since 2009.  Throughout that time he has enjoyed approved limited community treatment, without incident.  His mental health has also remained stable, although there was a brief admission to hospital in 2012.

4. Between 3 February 2006 and 17 February 2013, the Tribunal regularly reviewed and confirmed the respondent’s forensic order.  In the last of those decisions, extensive limited community treatment was approved as part of the forensic order.  A subsequent appeal by the respondent, seeking revocation of the forensic order, was unsuccessful.  However, at its review on 2 December 2014, the Tribunal revoked the forensic order.  This decision followed a submission by the respondent’s treating team and the Community Forensic Service that the forensic order was no longer necessary.

   Tribunal decision

5. The Tribunal had before it evidence from the respondent’s treating psychiatrist, and psychiatric reports from Drs Grant, Pathé and Bells.  Evidence was given by the respondent’s treating psychiatrist, case manager and Dr Grant.

6. In its Statement of Reasons, the Tribunal noted both the treating psychiatrist and the Community Forensic Mental Health Service opined that the respondent no longer needed to be subject to a forensic order.  His engagement with the treating team, his alcohol abstinence, and the stability of his mental condition was such that he could continue to engage effectively with the treating team on a voluntary basis. 

7. The Tribunal also noted the treating psychiatrist did not agree with Dr Grant’s opinion that the likelihood or possibility the respondent may cease treatment in the future was a reason to keep him subject to the forensic order.  In the treating psychiatrist’s opinion, the respondent did not present well in his interview with Dr Grant due to the respondent’s concern that Dr Grant was not independent. Further, there was no indication the respondent would cease treatment, as his condition had been stable for many years and he was compliant and willing to continue with treatment and medication.

8. The Tribunal noted that Dr Grant disagreed with the recommendations of both the Community Forensic Mental Health Service and the treating psychiatrist.  Dr Grant also disagreed with the treating team’s diagnosis that the respondent suffered from a major depressive order (in remission).  Dr Grant considered the most likely diagnosis was delusional disorder/depression, and expressed concern there may be some ongoing paranoid delusional beliefs attributable to that diagnosis.  Without sufficient structure, the respondent’s paranoid ideation could increase and he could become increasingly unstable.  For this reason, Dr Grant recommended he remain on the forensic order.  There was otherwise a significant risk he may eventually opt out of treatment.

9. After considering all of the relevant evidence, the Tribunal decided to revoke the forensic order.  The most significant factor in that decision was the respondent’s current low level of risk to the public and to himself, and the respondent’s insight and willingness to participate in ongoing and regular treatment.  The Tribunal noted that whilst the index offence was serious, it was an isolated offence with no repetition of such behaviour since the index offence.  The respondent had also undertaken full limited community treatment in the community since 2006, with the only relapse in his condition being in 2012. This relapse appeared to have been based on genuine concerns, and led to his neighbour being relocated to alternative accommodation.

   Evidence

10. Dr Purushothaman, the respondent’s current treating psychiatrist, gave evidence that he knows him well, having been his treating psychiatrist since late 2011 or early 2012.  He opined, both in his reports and in evidence, that there was no need for a forensic order to remain in place in order to appropriately deal with the respondent’s clinical situation.  The respondent had been well managed for a number of years now, with full compliance with his treatment requirements.  Whilst he had in recent times had to deal with significant underlying medical illnesses and changes in his neighbourhood, his dynamic risk factors had remained stable for some time.  He also had not consumed alcohol for many years, a significant factor having regard to its relevance to the index offence and his risk factors of re-offending in the future.  Further, the respondent was now compliant with his medication regime, whereas at the time of index offence he was not receiving regular treatment for any ongoing psychiatric condition.

11. The treating psychiatrist further opined that, although there was the prospect the respondent may relocate in the future, and therefore require a transfer to a new treating team, the respondent had indicated a willingness to keep in contact with the treating team.  The treating psychiatrist was confident a careful handover would result in appropriate ongoing management of the respondent’s risk factors.

12. The treating psychiatrist further opined that the respondent had developed insight into his need for treatment and medication.  Significantly, he had remained compliant despite revocation of the forensic order some months ago.  In the event of a deterioration in his mental health, it is likely he would continue his engagement with the treating team.  If his illness was such that he had lost his insight into the need for that treatment, the treating team could consider treatment under the auspices of an involuntary treatment order.  The continuation of a forensic order added nothing to the treating team’s engagement and management of the respondent’s ongoing risk.

13. The treating psychiatrist accepted that the respondent is likely to present to a new treating team as grumpy and irritable, as he does not like to answer questions about his past, particularly about the index offence.  However, the treating psychiatrist saw this response as being one of frustration, and considered that once the reason for the questioning was explained to the respondent, a good therapeutic alliance could be developed with the new treating team.  The treating psychiatrist accepted his paranoid personality structure may mean his initial response may be negative.  However, these concerns could be met by ensuring a long transitional period between treating teams.

14. The treating psychiatrist also accepted the respondent did not like being subject to a forensic order, but said it had not been the respondent’s request to revoke the forensic order.  It was the treating team, and the associated forensic review team, that took the view there was no need for a continuation of the forensic order.  The treating psychiatrist accepted a factor in the respondent’s ongoing compliance with the treating team was that there was an outstanding appeal, which could reinstate the forensic order.  However, he did not consider there was a significant risk that if the appeal was dismissed the respondent would disengage with the treating team in the future.  In proffering that opinion he accepted there were risks associated with his ongoing medical conditions, particularly his vascular risk factors, which may lead to personality changes as a dementing process set in.

15. Dr Grant undertook an independent assessment of the respondent at the request of the Tribunal.  It was his opinion that the respondent continued to present an unacceptable risk to himself and others should the forensic order be revoked.  Dr Grant maintained that opinion in evidence before this Court.  In his opinion, a forensic order remained the best framework to ensure the respondent’s ongoing compliance with treatment and medication, and his engagement with the treating team.

16. Dr Grant enunciated his concerns in evidence.  In his opinion, the respondent did not just suffer from a psychotic depression at the time of the index offence.  He had more of a delusional disorder with co-morbid depression, with evidence of quite prolonged paranoid ideation.  Dr Grant does not consider, even now, that the respondent has total insight into that illness.  His reluctance to talk about issues in the past, together with his discussion of the delusional beliefs he had developed about his wife, also indicated he did not have full insight into the fact that those ideas were untrue.  There had also been evidence of some paranoid ideology recurring from time to time and persisting, although again the respondent was reluctant to talk about those ideas, which had a disturbing similarity to the ideas he developed when first unwell.

17. In Dr Grant’s opinion, the difference between the respondent’s position now and at the time of the index offence is that whilst there may be a continuing low grade paranoid ideation, there is abstinence from alcohol, a significant exacerbating factor in the original offence, and the respondent is older and physically unwell.  However, he remains a prickly, irritable person with paranoid personality traits and possibly some ongoing actual paranoid ideation.  Against that background, if he were to become unwell there was a significant risk he could react to a situation in a violent way to defend himself.  As such, he requires ongoing close follow up on a long term basis.

18. Dr Grant opined that the respondent would benefit from a small dose of antipsychotic medication in the future.  There would also be a need for close attention to compliance with his medication, continued contact with his support networks and maintenance of a good relationship with the treating team.  A forensic order assists in that process and acts as a safety net, which in Dr Grant’s opinion was particularly important in this case.

19. Dr Grant explained his concerns in relation to a discontinuance of the forensic order as being the respondent may decide to reduce contact with the treating team, particularly if he took umbrage about something.  There was also a risk that in the case of a change of treating team that he may drop out of the system.  His personality traits meant that there was a significant potential if he did become irritated or take umbrage at something, and was not subject to a forensic order, he would opt out of treatment.

20. In Dr Grant’s opinion, the respondent ought to show a good understanding and full insight into his original illness, together with evidence that he no long suffers those symptoms and had taken ownership of that illness, before consideration is given to revocation of the forensic order.  The respondent had not exhibited all of those features to date, and the external structure of a forensic order was therefore a helpful safety net.

21. Dr Grant did not accept that the treating psychiatrist would have a better understanding of the respondent’s level of insight.  Whilst the existence of a long-term relationship was extremely beneficial in understanding changes that might indicate increased risk or potential relapse, a one-off interview can provide sufficient indications about insight and the need for ongoing treatment.  Indeed, Dr Grant considered there was a risk the treating team, over time, may take some matters for granted and allow some of the relevant issues to be lost.  The treating team will not revisit everything on each visit.  It is worthwhile occasionally to revisit those earlier matters to see whether those ideas are still present.

22. Dr Grant also opined there was a risk, having regard to the respondent’s personality traits, that the treating team may choose not to discuss past matters, where the respondent refuses to talk about them, in order to maintain the treating relationship.  It would be important to raise those issues from time to time to judge how active any psychotic symptoms might be at present.  There was also a risk progressive cardiovascular and cerebral vascular issues could lead to a worsening of his paranoid or irritable features in his personality, making him more suspicious, more difficult and more irritable.

    Assisting psychiatrists

23. Dr Lawrence advised that whilst the argument for and against revocation of the forensic order were fairly evenly balanced, a consideration of the respondent’s psychiatric history and risk factors favoured retention of a forensic order in all of the circumstances.

24. Dr Lawrence advised that the respondent suffered from a psychotic illness against a long history of alcohol abuse and dependence.  This dependence would have contributed to his difficulties, including the development of paranoid beliefs.  Whilst the respondent was well engaged with his treating team, had considerable support structures, and there was no clear evidence of a recurrence of his psychotic illness, he does retain features of paranoia in his personality and irritability which becomes more prominent at the time of one-off assessments done by outside psychiatrists. 

25. Having regard to the possibility of a transfer of treating teams, and the risks associated with that transfer, Dr Lawrence advised the forensic order provided a good framework within which to ensure continuing management by the treating team.  There was no good reason for removal of that forensic order framework.

26. In proffering that advice, Dr Lawrence advised there was a risk of deterioration, relapse and harm either to the respondent or another person if he were not subject to a forensic order.  There was also a risk that prompt action could not be taken, that the need for action would not be recognised in sufficient time, that the respondent would not have the necessary insight to seek the support and assistance he would require following a deterioration of his condition.

27. Dr Sundin concurred with Dr Lawrence’s advice.  Whilst the treating team were doing a very good job in the management of the respondent, the dynamic risk factors presented by the respondent were at risk of change, given his significant medical problems and the imminent likelihood of the impact of cerebral vascular disease on his cognitive function.  That would likely see an exacerbation of lifelong paranoid and authoritarian personality traits, leading to an increased risk of violence.  Both the respondent and society would continue to benefit from the maintenance of a forensic order.

    Discussion

28. There is no doubt the respondent is presently well managed by a treating team which is well aware of the risk factors the respondent presents now, and in the future.  There is also no doubt the respondent is presently well engaged with that treating team.  His willingness to continue to receive treatment notwithstanding revocation of the forensic order by the Tribunal is to his great credit.

29. However, a consideration of whether the respondent poses an unacceptable risk to himself or others, should he not be subject to a forensic order, requires a consideration not only of the respondent’s current circumstances, but the risk factors he presents in the event his mental illness deteriorates in the future. 

30. Dr Grant gave careful consideration to those risk factors, both in his report and in his evidence to the Court.  I found that evidence cogent and highly persuasive.  I have no hesitation in accepting his opinion that the risk factors presented by the respondent are such that there is a need, both for the protection of the respondent and of the community, to continue the safety net provided by a forensic order.

31. The respondent’s irritability at having to revisit the past is of particular concern, having regard to his past paranoid ideation, and the continuing traits evident in his recent behaviour.  Should he not be subject to a forensic order, there is a significant risk the respondent will refuse to discuss those matters with his treating team.  Should they continue in attempting to discuss those matters with him, there is a significant risk he will disengage, so as to avoid that issue.  There is also a significant risk the treating team, in an effort to maintain a good working relationship, will not press those issues.  I accept Dr Grant’s opinion that revisiting those issues is especially important in undertaking an assessment of the presence and relevance of paranoid ideations to the respondent’s ongoing condition.  I accept the risks to the respondent, and the community, are unacceptable without the continuation of a forensic order.

32. The Tribunal gave insufficient weight to the risks identified by Dr Grant.  They were real, and not met by the treating psychiatrist’s opinion that the respondent would continue to willingly engage with the treating team on a voluntary basis.

33. If the forensic order were revoked, and the treating team pressed the respondent to engage with the circumstances surrounding the index offence, there was a real risk he would disengage, or alternatively, that the treating team may not press him to discuss the mental health issues involved in the index offence, such that his illness could not be effectively monitored and treated, without the structure of a forensic order.  A forensic order complements the efforts of the current and any future treating teams to monitor his continuing management and treatment, which may otherwise be complicated by the defendant’s distrustful personality traits.

    Conclusion

34. I accept Dr Grant’s evidence, and the advice of the assisting psychiatrists.  The imposition of a forensic order is an important safety net, for both the respondent and the community. Should he not be subject to a forensic order, the respondent represents an unacceptable risk to himself and others.  There is no basis upon which the Tribunal, or this Court can revoke the forensic order.

1. The appeal is allowed.  The decision of the Mental Health Review Tribunal is set aside.