Re SM-T
[2011] QMHC 13
•30 August 2011
MENTAL HEALTH COURT
CITATION:
Re SM-T [2011] QMHC 13
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING NO:
0157/11
DELIVERED ON:
30 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
30 August 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr E N McVieFINDINGS AND ORDERS:
The decision of the Mental Health Review Tribunal made on 8 April 2011 is confirmed.1.
The appeal is dismissed.2.
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 8 April 2011 confirming a forensic order and limited community treatment in respect of the respondent – where the Attorney-General appeals on the basis that an extension of the respondent’s limited community treatment was premature – whether the appeal should be allowed.
COUNSEL:
B McMillan for the Attorney-General
J Briggs for the respondent \
J Tate for the respondent by electionSOLICITORS:
Crown Law for the Attorney-General
Legal Aid Queensland
Crown Law for the Director of Mental Health
ANN LYONS J:
This is an appeal by the Attorney-General against the decision of the Mental Health Review Tribunal made on 8 April 2011. The Tribunal confirmed the Forensic Order and limited community treatment was approved. That limited community treatment in its conditions did not contain a requirement introduced in March 2007 by the Tribunal that the respondent [SM-T] was not allowed to return to the area in which the index offence occurred.
In a notice of appeal filed on 16 June 2011 the reasons were set out as follows:
“The extension of limited community treatment, allowing for unsupervised visits to areas including, [an area of regional Queensland] was premature. In granting such leave the treating team did not have full regard to the associated risks to the patient and the community.”
The respondent was placed on a forensic order on 14 June 2005 when the Mental Health Court found her to be of unsound mind in relation to a charge of murder. It was alleged that she had murdered her 11 year old daughter, on 26 August 2004.
Pursuant to that Forensic Order the respondent was detained in The Park High Secure Unit and was allowed to have access to escorted absences on ground. In the last seven years the respondent has progressed to living in the community and now lives with her mother and next door to her sister and brother-in-law near Ipswich.
The MHRT clearly continued the Forensic Order. This appeal therefore essentially relates to the conditions of the Forensic Order and specifically whether the previous requirement that the respondent only have restricted access to [an area of regional Queensland] should have been removed.
As the MHRT noted in its reasons that restriction was introduced by the Tribunal in March 2007 when the respondent was still unwell after the index offence and it was considered it was inappropriate at that point in time for her to return to the area of the index offence. A statement of reasons given on 3 April 2007 in respect of the decision to impose that restriction included the following comments:
“The Tribunal was concerned that return to the area of the index offence posed a number of potential challenges which may destabilise the patient’s progress. The stress of familiar sites may exacerbate the grief already felt by Sharon in relation to the circumstances of the loss of her daughter. Other possibilities exist for adverse events arising from unintended contact with persons likely to recognise her in that area. The Tribunal considered it unwise to add these potential stressors to an already difficult process.
The robust attitude of Sharon and her family members that these things have to be faced displayed a view which oversimplified the problem and indicated a limited awareness of recognising and dealing with potential setbacks in Sharon’s recovery. In the Tribunal’s view, the caution of the treating team was preferable in that these steps need to be slow and steady to consolidate the improvements to date.”
At the MHRT hearing on 8 April 2011 the Tribunal heard evidence from the treating team in relation to the respondent’s recent progress. The respondent’s case manager indicated that the treating team supported the removal of the restriction on her going to [an area of regional Queensland]. She indicated that that submission was based on the fact that the respondent was compliant with all aspects of her treatment and that more access to [an area of regional Queensland] was appropriate given her ties to the community there. The case manager advised that there is no plan at present for her to move permanently to [an area of regional Queensland].
Counsel for the Attorney-General indicated to the Tribunal that there was no opposition to the treating team’s proposal but stated that a crisis intervention plan should be prepared before she moved permanently to [an area of regional Queensland].
In considering whether that requirement should be removed the MHRT in its Reasons dated 4 August 2011 noted that the respondent had improved well beyond the condition of her mental state when an inpatient in 2007. The Tribunal noted that she was now residing in the community and had been doing so for two years. The Tribunal also noted that the respondent has in fact already had an opportunity to return to [an area of regional Queensland] and visit the grave of her daughter and that her mental state has remained stable.
The Tribunal also considered that the respondent had lived in [an area of regional Queensland] for 30 years before the index offence and that her adult children and grandchildren reside in that area as does her network of friends. The Tribunal considered that the respondent is now well and able to contemplate some of the problematic issues that might arise following a return to that area. The Tribunal was also satisfied that she posed no threat of violence to anyone that she might encounter in that area. The Tribunal indicated that it also recognised that her return to the area took with it the possibility that she would be seen and recognised. However, whilst it recognised that this might create some distress to the community and to the respondent the Tribunal noted,
“banishment is not a usual process in this community. Even persons who deliberately offend return to their communities. Persons with mental illness who are given a defence of unsound mind should not be placed in a worse position than those who choose to offend in the first place.”
Counsel for the Attorney General at the hearing of this appeal has appropriately and fairly placed on the record the fact that the order now sought is in fact contrary to the submission put by Counsel for the Attorney General at the hearing before the Tribunal. In fact the appeal essentially contradicts the position taken below.
There have now been a number of decisions of this Court which have indicated that such a course is not appropriate. As recently as 9 June 2011 Boddice J in Re BDS[1] indicated:
[1][2011] QMHC 6.
“[8] The other grounds for the submission that the appeal constitutes an abuse of process are, however, in a different category. It is a matter of considerable concern that an appeal could be mounted relying upon a position which was not taken below and which contradicts the position taken in respect of the proceedings before the Tribunal.
[9] The Court of Appeal has recognised in criminal matters that it is only in exceptional circumstances that the public interest would justify an appellate court acting upon an argument advanced on appeal which was not in accordance with submissions which had been made before the primary Court; R v. KU and others, ex parte the Attorney-General of Queensland [2008] QCA 154.
[10] There is even greater reason why that approach should be adopted in respect of proceedings dealing with the vulnerable and how they are best to be treated and cared for within the system that exists in Queensland for the treatment of those who are mentally ill.
[11] There would need, to be exceptional circumstances to justify a stance being taken by the Attorney-General which is contrary to the position that was adopted before the Tribunal. Generally, those exceptional circumstances would need to be circumstances based on considerable concern in respect of the safety of the community having regard to a change in the circumstances of a person, the subject of the appeal.
[12] The Attorney-General has fairly and properly conceded there is no change in circumstances since the decision, the subject of appeal, and that the grounds sought to be relied upon are not grounds that were advanced in the Tribunal below. In those circumstances, this Court is satisfied it would be an abuse of process to allow the appeal to continue on that basis.”
I also endorse the comments I made last year in Re: WJA:[2]
“[52] In the circumstances of this case where there has been no change in circumstances, where the appellant was afforded a full opportunity to be heard and took advantage of that opportunity and where the grounds of appeal have not been outlined with sufficient particularity for the respondent to understand the true nature of the appeal, I consider that the appeal is oppressive to the respondent. In my view, the approach taken in the circumstances of this case is burdensome and essentially unfair to the respondent. This is particularly so given the human rights principles set out in s 4 of the Act which underpin the administration of the Act. Furthermore, the State has acknowledged that it subscribes to the Model Litigant Principles which include the acknowledgment that the State should act consistently, endeavour to avoid litigation and not institute or pursue appeals unless the State believes that it has reasonable prospects for success, or the appeal is otherwise justified in the public interest.”
[2][2010] QMHC 1.
I consider that the appeal should be dismissed as an abuse of process.
I also consider that there is no merit in the appeal. I consider that the Tribunal had sufficient evidence to consider that the respondent and her family had now reached the stage of understanding the complexities and concerns that might arise from returning to live in the area of the index offence. It is clear that the respondent will not be returning to the place where she was living nor to [an area of regional Queensland] in the short term. The Tribunal considered that the risks to the respondent or the risks that the respondent might pose to other’s peace of mind “were not such as to warrant continuing her enforced absence from the area where major supportive relationships might exist”.
The Tribunal also considered that it was important that the respondent have access to other avenues of regular support rather than simply her 81 year old mother. The Tribunal considered that there was no unacceptable risk in deleting the condition that had existed for the last four years and I endorse the approach of the Tribunal. The Tribunal also noted the submission of the Attorney-General’s representative that a more detailed plan should be put in place to manage any crisis. It is clear from the evidence of Dr Daniel that such a plan is being prepared.
Accordingly I am absolutely satisfied that there was a solid factual basis for the Tribunal to make the decision that it did and the decision cannot be impeached.
The Appeal is dismissed.
The decision of the MHRT made on 8 April 2011 is confirmed.