Re Sorensen
[2010] QMHC 15
•18 June 2010
MENTAL HEALTH COURT
CITATION:
Re Sorensen [2010] QMHC 15
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF BENJAMIN ANTON SORENSEN
PROCEEDING NO:
No 0215/2008
DELIVERED ON:
18 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
24 July 2009, 16 April 2010
JUDGE:
Philippides J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr J ChalkFINDINGS AND ORDER:
1. That in respect of the charge of driving without a licence:
(a) the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);
(b) the defendant is fit for trial;
(c) the proceedings continue according to law.
2. That in respect of the charges of attempted murder and serious assault on person 60 years and over:
(a) the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);
(b) the defendant be detained as a forensic patient at the Toowoomba Area Network Authorised Mental Health Service;
(c) Approval of limited community treatment in the nature of escorted leave on and off the grounds on the following conditions:
(i) That the patient is to remain under the escort of the health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;
(ii) For the purposes of escorted limited community treatment, that the patient comply with the directions of the nominated staff member/s for the duration of the limited community treatment.CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted murder and serious assault on person 60 years and over – where defendant floridly psychotic – where defendant was deprived of capacity to know he ought not to do the acts – where differing psychiatric opinion as to the nature of the defendant’s diagnosis – whether defendant suffered from drug induced psychosis or schizophreniform psychosis – whether intoxication contributed to any extent to the defendant’s state of mind resulting in deprivation of capacity – whether defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the relevant time
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with driving without a licence – where no clinical evidence that defendant was of unsound mind – where defendant is fit for trial
Mental Health Act 2000 (Qld), s 269, Schedule 2
R vClough [2010] QCA 120
Re Plant, unreported, QMHT (27 March 1998)
COUNSEL:
Mr S Hamlyn-Harris for the Defendant
Mr J Tate for the Director of Mental Health
Mr S Vasta for the Director of Public Prosecutions (Qld)SOLICITORS:
Robertson O’Gorman Solicitors for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)PHILIPPIDES J:
The defendant is charged with attempted murder and serious assault on person 60 years and over on 29 July 2008. He is also charged with driving without a licence on 27 May 2008. The issue of the defendant’s mental state at the time of the alleged offences has been referred to this Court.
To assist the Court in its determination, a number of reports were provided, including reports by Drs Voita, Beech and Van de Hoef, who also gave oral evidence.
The charge of driving without a licence
In respect of the charge of driving without a licence on 27 May 2008, the clinical evidence does not support a finding that the defendant was of unsound mind. As the defendant is fit for trial, that matter will proceed according to law.
The attempted murder and serious assault charges
The remaining serious charges relate to events concerning the defendant’s assault on an elderly couple, Mr and Mrs Moore, in the Noosa National Park on 29 July 2008. The charge of attempted murder concerns the assault on the female victim and the charge of serious assault relates to her husband. The defendant approached the couple, who were walking along a footpath in the park. He confronted them “yelling and speaking gibberish” and punched Mrs Moore repeatedly, inflicting extremely serious injuries. Witnesses described the defendant saying, “I’m going to kill her” and “I’ve killed my girlfriend”. He was also heard to say he had killed ‘Kerri’, being a reference to his girlfriend. Mr Moore tried to intervene to stop the defendant, but was unable to do so and was pushed causing him to fall, thereby sustaining injury. A number of bystanders intervened and were able to restrain the defendant and detain him until the police arrived.
Personal history
At the time of the alleged offences, the defendant was running his own business as a house painter with several employees. He was engaged to Ms Kerri Webb.
The defendant has a criminal history and a history of poly substance abuse. The defendant first came into contact with mental health services when he was aged 15, following presentation with depression and suicidal ideation, requiring hospitalisation. He was assessed as suffering from cannabis dependence, alcohol and substance abuse, adjustment disorder and conduct disorder. In 2001 at age 18, he again came into contact with mental health services at a time he was using cannabis and methamphetamine, after becoming involved in a fight and stabbing a man. The clinical opinion at the time was that the defendant was intoxicated with alcohol and cannabis, given that symptoms he experienced settled within days of admission to hospital. The defendant was charged with attempted murder but pleaded guilty to a charge of unlawful wounding. He spent some time in a psychiatric unit in Toowoomba and 10 months at Teen Challenge on a drug rehabilitation programme.
The period leading up to 29 July 2008
In respect of the defendant’s behaviour in the period before the alleged offending, the defendant’s partner gave a history on 30 July 2008 to Ms Goodwin, a mental health worker with the Court Liaison Service, (which is recorded in Dr Voita’s comprehensive report of 22 September 2008) as follows:
“[The defendant] had been displaying ‘increasingly paranoid and disturbed behaviour’. She reports that a few weeks ago he had started telling her that he thought that his mates were ‘out to get him’. He was unable to be dissuaded from this line of thinking easily at the time. Since then, he has made other statements that indicated that he was having other unusual thoughts, but these increased dramatically over the weekend after he ceased his heavy cannabis use last Thursday morning (24/9/2008 (sic)). She reports that on Saturday he began having multiple showers throughout the day (up to 5 or 6) and then on Sunday this increased to 10-11 showers in one day. He does not normally attend church, but insisted that they go to mass on Sunday morning and then went to see a priest on Monday. He asked the priest a number of questions: ‘am I a bad person’, ‘does God love me’, ‘does god forgive me’. The priest suggested to him that he was paranoid and should seek some mental assistance.”
Defendant’s account of 29 July 2008
The defendant’s report to all the expert reporters (supported by collateral evidence) was that on the morning of Thursday 29 July 2008 he experienced a number of bizarre symptoms, including “religious revelations”. The defendant gave largely similar accounts of the events of 29 July 2008 to Drs Voita, Beech and Van de Hoef. The account the defendant gave to Dr Van de Hoef is recorded in her report as follows:
“On the Tuesday morning (29/7/2008), after ‘freaking out’ much of the weekend, he thought he was fine. His mate ‘Gobbie’ picked him and 3 other men to go to work. They got half way down the road to Noosa when he saw a sign saying ‘Noosa Biosphere’, and suddenly developed the belief that he was aging rapidly as they drove, and that he would die in the car. He screamed at Gobbie to stop and got out of the car, terrified, yelling, and then smashing his mobile phone because he thought it was bugged. He then began walking down the road in the opposite direction, believing that if he got further away, he would be all right. He said he ‘had thoughts about God’ and was aware of Him talking to him and telling him to do things, but not via an audible voice. He said he thought one of the things he had to do was to take beer to his father’s place in Rockhampton, and had a vague recollection of taking 2 bottles from a bottle shop (at Coolum, according to witnesses.) He said he did not drink any of it, as he believed then it would be a ‘blasphemy of the Holy Spirit’. He dropped one bottle on the beach, and left the second near the scene. … He believed he had to walk to Rockhampton, to ‘get to heaven’, and actually did walk from Peregian Beach almost to Noosa. Gobbie tried, but failed, to keep up with him, and offered to ring Kerri. He said Gobbie was a good mate, but at that time he thought he was a demon, and that he himself was dead.
He left the road, as he formed the idea he had to leave ‘footprints in the sand’. He stripped off his shoes and clothing (except for underpants) and left them and his wallet on the beach at Peregian, believing he needed to be baptised in the Holy Spirit. (His belongings were found by the Peregian lifeguards.) At one stage, he thought he must swim out into the ocean and keep going; at another he jumped into a gap in the rocks, believing God would save him. As his father was a ‘bushman’, he believed he wanted him to take a bush track.
… He remembered only fragments of what happened next, as he encountered the Moores. He said he could not remember what they looked like, what he said or what he did, though he knew he had hit Mrs Moore. He remembered ‘people jumping on him’, and thought he was to be ‘pinned there in hell forever.’”
After his arrest on 29 July 2008, the defendant was taken to the watch-house. He recalls yelling and praying to God throughout the night. He reported having a recollection of waking up and believing that he was in hell and being asked to sign a document, which the defendant believed was a contract for his soul.
Period following 29 July 2008
On admission to the Arthur Gorrie Correctional Centre (AGCC) on 30 July 2008, it was noted that the defendant displayed extreme violence towards police during and post arrest, requiring subduing with capsicum spray. He was noted as smiling incongruently and said, “I have killed my mother. I need my Father, Father please forgive me”. In his cell, the defendant was noted to be posturing, and alternating between being mute and calling out. He took no food and attempted to chew a Styrofoam cup.
On 31 July 2008, Dr Heffernan saw the defendant (who required an escort of four officers) and considered him to be psychotic; his notes indicate that the defendant had been awake all night, standing naked and singing hallelujah. His speech was described as “loud, disorganised and erratic” and centred around religious themes and biblical references. At one point he asked Dr Heffernan if he was a “righteous man”. Later that day, the defendant was admitted to The Park – High Security Inpatient Unit, under the care of Dr Voita as his treating psychiatrist. At the time, he was described as distressed, dishevelled, preoccupied with paranoid religious thought and content, and reacting to internal stimuli and probably hallucinating. On admission to The Park the defendant required 24 hour constant observations and was placed on an ITO. The defendant was aggressive, confused and disorientated, as well as non-compliant and requiring intramuscular injections in order to settle. He was noted to say, “sorry for everything. I’ll never take drugs again”.
When reassessed by Dr Robertson on 1 August 2008 the defendant presented as distressed, not seeming aware of his surroundings, and still markedly thought disordered. He was noted to have soiled himself and to be disorientated in place and date and misinterpreted Dr Robertson as being Ms Webb. Dr Robertson asked the defendant when he last used speed and the defendant replied “a few days ago … maybe a week ago”, but not able “to clearly describe the route of admission” (whether oral or injected).
On 4 August 2008, the defendant was thought to be improved and specifically denied auditory hallucinations. He was trialled off constant observations, but became so distressed that constant observations were recommenced. On 5 August 2008, the defendant was questioned as to the drug he had used and answered “pot, ecstasy, speed and LSD”, and mentioned injecting drugs but could not give an exact timeframe. On 6 August 2008, the defendant exhibited ongoing improvement in his mental state. When asked by Dr Robertson about the “last time he used speed”, he stated about “1-2 weeks ago”. While being nursed on constant observations, he stated to a nursing staff member that he had been “smoking cannabis 24/7, quarter ounce or 200 dollars per week and sometimes more”.
By 7 August 2008, the defendant reported no ongoing delusional ideas and was able to partially explain his previous delusional ideas. On 12 August 2008, the defendant denied all positive psychotic symptoms. He reported very heavy cannabis use over the preceding year, stating that he would use about 30 to 40 cones per day. He also admitted to use of periodic use of LSD and oral ecstasy every few months and reported that he had last used one to two months prior to his arrest. When questioned further, he mentioned that he had used a vial of steroid. He then changed his mind and stated that he had last used this in late 2007.
The defendant was moved out of seclusion, after having spent 12 days there.
On 19 August 2008, the defendant was seen by Dr Apel, a psychiatrist, who compiled a report dated 1 September 2008. The defendant told Dr Apel that he was smoking heavily in the previous 12 month period, using hydroponic produce and spending about $200 to $300 weekly. As well he would use ecstasy of one or two tablets each weekend, especially if he was short of money for cannabis. He said he was aware that he was becoming addicted to this and told Dr Apel that he had stopped his cannabis use the previous Christmas for a period of two weeks, during which time he had a “profound withdrawal”. He experienced hot and cold flushes, night sweats and paranoid thoughts, believing that a female friend of his was a spy for people he had met at the gym. He reported that he would only contact his friends from a pay phone, as he thought there was bug in his home phone or mobile. The defendant reported that he stopped smoking cannabis three to four days before 29 July 2008 because of his concerns that he was becoming dependant on it and needing to smoke it to feel normal. He reported that after about two to three days without cannabis he was feeling very “hyped up”. After he stopped, he related some odd beliefs developing; he had a belief that his girlfriend was an angel and could read his thoughts. As well, he had a belief that humans have been enslaved by aliens and that a contraceptive implant that his girlfriend had was being used to control his mind.
Dr Apel concluded that, at the time of the events of 29 July 2008, the defendant had a clear psychotic illness, “of a schizophreniform type, involving delusions and hallucinations of a grandiose, religiose and paranoid type”. Dr Apel opined that the picture of the illness was not one which would customarily be associated with intoxication. He diagnosed the defendant with substance induced psychotic disorder, cannabis dependence and antisocial personality traits. He noted a temporal relationship with the development of a psychosis and cessation of cannabis usage, with symptoms consistent with cannabis withdrawal. Dr Apel considered that the defendant’s psychotic disorder was triggered by withdrawal from cannabis rather than reflective of a schizophrenic process. He considered the defendant’s behaviour to be delusionally driven in response to delusional goals, and that the defendant was as a result deprived of the capacity to know he ought not do the acts in question.
Dr Voita and Dr Robertson saw the defendant on 21 August 2008. The defendant told them that he had not used amphetamines for years and denied injecting amphetamines prior to the alleged offences of 29 July 2008, but then stated that he had used speed a couple of weeks prior to the offences and then later said that was incorrect and in the same interview said he had used ecstasy “just one or two tablets” weeks prior to 29 July 2008. He also said that he had last injected steroids intramuscularly in October 2007.
The defendant was further assessed by Dr Voita on 4 and 5 September 2008. He reported that in the preceding days he experienced strange thoughts. These were not considered to be of a delusional intensity. The defendant reported on 4 September 2008 that he had last smoked cannabis on Sunday 26 July 2008.
Dr Voita reviewed the defendant on 29 September 2008 following which the defendant’s ITO was revoked on 30 September 2008. Dr Voita reviewed the defendant again on 27 October 2008 and 1 December 2008. She noted that during those assessments the defendant was free of symptoms of mental illness. In view of this, and at the defendant’s request, his medication was reduced and ultimately ceased on her last review. Dr Voita intended that there be further psychiatric review at the Toowoomba Mental Health Service. However, on 2 December 2008, the defendant was granted bail to Teen Challenge on a 12 month residential drug rehabilitation programme.
On 26 December 2008, some 25 days after ceasing medication, the defendant, while on leave from Teen Challenge, reported watching a film after which he developed abnormal thoughts. He told Dr Van de Hoef that he developed “strange thoughts”, involving aliens that “made (him) angry and wanting to go against the way society was being controlled by them”. These thoughts settled quickly, but caused Dr Rendle-Short to prescribe anti-psychotic medication on 30 December 2009. The defendant was referred to the Darling Downs West Moreton Mental Health Service on 16 March 2010 but has not had any comprehensive psychiatric evaluation.
The defendant has repeatedly denied using drugs or alcohol on the day of the offences. Tests on blood samples taken on 29 July and on 31 July 2008 were positive for the metabolites of cannabis but negative for any other illicit substance and alcohol. A urine toxicology test from 5 August 2008 also revealed a positive result for cannabis, but no other illicit substance.
The expert evidence
Dr Voita
In her report of 22 September 2008, Dr Voita opined that the defendant was floridly psychotic at the time of the events of 29 July 2008. She observed that this was supported by his self report, collateral information obtained from his partner and parents, the mental health assessment of him at the watch-house a day after his arrest, at AGCC the following day and for the first two weeks of his admissions to The Park. She also diagnosed antisocial personality disorder, cannabis dependence, amphetamine, LSD and alcohol abuse and alcohol dependence.
Dr Voita noted that at the relevant time the defendant was suffering from psychotic symptoms, which included grandiose, persecutory and religious delusions, visual hallucinations, ideas of reference and disorganised thinking and behaviour. He was as a result of his psychotic illness deprived of the capacity to know that he ought not do the acts. Dr Voita stated:
“The explanation he gives for attacking the couple is consistent with the religious nature of his delusions at the time and his inability to fully explain or remember the attacks are in my view due to the level of disorganisation and agitation he demonstrated in the hours prior to the attack. The male attacked describes him as ‘talking gibberish’ prior to pushing him off the path and then attacking his wife. [The defendant] describes florid psychotic symptoms at the time and misinterpreted that the couple were ‘walking away from god’ and has described the belief that he had to ‘kill the infidel’ to get to heaven and his father. In the days preceding the offences he told his partner that he believed she would eat him and this may explain why the attack was primarily directed towards the woman rather than the man. It seems probable in my view that … this relates to the delusional ideas related to women harming men. Interestingly when at the watch-house he makes statement to the effect of ‘I killed my mother … please forgive me father’. He incorporated both the restraint by passers-by, as well as his time in the watchhouse, into his persecutory and religious delusions. This continued whilst he was in custody and for a number of days after his admission to The Park – HSIU.”
She noted that, by the defendant’s account, the onset of the acute symptoms pre‑dated the offending conduct by two days and clearly worsened on the day of the alleged offences. She noted that, prior to this, his reports were of some impairment of his functioning in the form of memory problems and attention difficulties. But in her view, there was no evidence of longer standing psychotic symptoms or a prodromal schizophrenic illness.
In respect of diagnosis, Dr Voita concluded that the defendant’s presentation was consistent with a substance induced psychotic disorder, “precipitated by heavy cannabis use and the repeated ingestion of oral amphetamines (ecstasy) and hallucinogens (LSD)”. Dr Voita considered that the disorder had its onset during intoxication. In her view, the defendant’s psychotic symptoms rapidly resolved (completely within two weeks) with antipsychotic and anxiolytic medication and abstinence from stimulants and cannabis. She also considered it possible that withdrawal from cannabis and alcohol may have also been present at the time of the offences.
In relation to the issue of intoxication, Dr Voita considered the symptoms of sleep disturbance, anxiety and agitation to be consistent with intoxication with illicit substances, in particular cannabis and “possibly amphetamines (ecstasy) and hallucinogens (acid)”. Dr Voita noted that the defendant did not give a consistent history of his amphetamine, LSD or steroid use, which she put down to the defendant’s “previous contact with the mental health system having already been referred to the Mental Health Tribunal and not being found of unsound mind due partly to the presence of intoxication”. For this reason, Dr Voita considered that more weight ought to be given to the defendant’s earlier accounts of his illicit substances use rather than his later accounts. She observed that, in the earlier accounts to her, the defendant indicated that he used ecstasy possibly as early as a couple of days prior to the offences and that the “presence of likely visual hallucinations and marked agitation and disorientation would also argue for the presence of intoxication being of relevance”. Dr Voita further stated:
“[The defendant] is more consistent with the history he has provided of his cannabis use (although even in this there is variance as to whether he ceased cannabis use on the 24/7/08 or the 26/7/08). He clearly has a history of over eight years duration of very heavy cannabis use and in the last six months, occasional oral amphetamine use (ecstasy) and occasional LSD (acid) use and significant use of alcohol. The quality of his psychotic experiences (which have included visual hallucinations), the rapid onset of use and rapid resolution of symptoms would argue for intoxication being a contributing factor to the deprivation of the capacity to know that he ought not do the act. This is supported by the fact that for the two days following the offence he did not sleep, was agitated and appeared at times disorientated and responding to visual hallucinations. The rapidity of the resolution would not be in keeping with the response being purely due to antipsychotic and benzodiazepine administration but due to elicit substances being excreted.
Of note is his past psychiatric history which indicates a number of brief episodes of psychotic symptoms primarily in the context of amphetamine use and resolution (in a few days to a week). The last of these episodes was in late 2007.
Therefore, despite the Urine Drug Screen taken on 5 August 2008 only being positive for cannabis, his history indicates to me that intoxication with cannabis and/or oral amphetamines and/or LSD was an issue at the time of the offences and that it complicated what evolved into a substance induced psychotic disorder. It is therefore in my view reasonable to conclude the intoxication contributed to his psychotic symptoms and the commission of the offences. I am still awaiting the blood toxicology from the 31/7/08 but in my view even if this was negative for amphetamines this does not alter my view as the substances may have already been excreted from his body more than two days after the alleged offences.
[The defendant] also admits to the use of alcohol the day preceding the offences on the 29/7/08 but in my view given the florid nature of his symptoms on the day of the offences, this did not play a part in the deprivation of the relevant capacity (although I am aware that he reports he consumed alcohol the preceding day and carried two beers on the day of the offence). As already noted I am uncertain of the relevance of steroid use to his presentation due to the inconsistent history provided.”
Dr Voita provided an additional report dated 26 March 2009, after considering Dr Apel’s report and the further blood analysis results of 31 July 2008. She maintained her opinion that the defendant was suffering from a substance induced psychotic disorder, and that intoxication was a contributing factor to his deprivation of the capacity. She excluded schizophreniform psychosis or schizophrenia, as she did not consider that the defendant fulfilled the diagnostic criteria, stating that on last review by her “there was complete resolution of psychotic symptoms and [the defendant], he did not exhibit longer standing impairment in his level of social and occupational functioning and the symptoms persisted for less than a month”.
I note that in her oral evidence, Dr Voita stated that, on the balance of probabilities, the drug which she considered the defendant to be intoxicated with was cannabis, although she thought it was “still possible” that other substances were involved, notwithstanding that no other substance was detected in the toxicology tests. Dr Voita indicated that she adhered to her opinion that intoxication through cannabis use was a contributing factor whether the last use was on 24 or 26 July. When questioned about the relevance of the toxicology results, Dr Voita indicated that her opinion that intoxication was a contributing factor was based “more in terms of the clinical diagnosis and also the issue that his symptoms resolved fairly quickly”. As to the first matter, however, Dr Voita accepted that the symptoms which she relied upon as being consistent with intoxication (such as sleep disturbances, agitation, disorientation and visual disturbances) were also clinically consistent with symptoms that could occur in an acute presentation of a schizophrenic illness in the absence of drugs. She also accepted that the themes the defendant mentioned in the episode in December 2008 were consistent with those of his psychosis in July 2008. As to the duration of the defendant’s symptoms, Dr Voita acknowledged that the defendant’s condition was such that he required seclusion for 12 days, agreeing with Dr McVie’s observation that the defendant seemed “to get better after a few days and was trialled out but had to go back”. Dr Voita was unable to give any indication of the duration of the intoxication and the beginning of psychosis.
Dr Beech
Dr Beech saw the defendant on 29 April 2009 and provided a report dated 7 June 2009. Dr Beech also opined that the defendant was psychotic at the time of the events of 29 July 2008. He noted that there was a history of deterioration in the defendant’s mental state for a few weeks prior to that time, with a marked escalation over the preceding weekend. He observed also that the defendant’s subsequent presentation at the watch-house and the documentation of his mental state at AGCC and on admission to The Park clearly demonstrated “the presence of florid schizophreniform psychosis with elements of catatonia”. He opined that the defendant’s mental state was so affected by psychosis at the time that he was deprived of the capacity to know the nature of his acts and to know that they were wrong. The real difficulty, as Dr Beech saw it, was in knowing what diagnosis to attribute to the defendant at that time and in understanding the role of substance use in its presentation. Dr Beech identified possible diagnoses as substance intoxication, substance withdrawal delirium, substance induced psychotic disorder and substance triggered psychotic illness.
Dr Beech rejected substance withdrawal as a likely diagnosis as he could find no evidence suggesting that cannabis or amphetamine withdrawal gave rise to a presentation consistent with schizophreniform psychosis of the duration exhibited by the defendant. He also excluded alcohol withdrawal, given the evidence of the defendant’s alcohol intake.
In relation to the question of cannabis induced psychosis and cannabis intoxication, Dr Beech noted that cannabis use was associated with an apparently uncommon cannabis induced psychosis which may last for a few days, possibly up to a week. It was schizophreniform in nature and rapidly remitted with abstinence. Dr Beech acknowledged that the difficulty with the diagnosis of cannabis induced psychosis was that the duration of the defendant’s symptoms in the HSIS were somewhat too prolonged.
Possible explanations for this disparity were the defendant “exaggerated his symptoms or that he was vulnerable to the cannabis psychosis due to an underlying disorder, or that other substances were involved”. I note that Dr Beech did not consider that the defendant had been malingering in respect of his symptoms. Dr Beech noted the inconsistencies in the last reported use of cannabis and opined that, if it was accepted that the defendant ceased cannabis use three days or more prior to the offence, cannabis intoxication “did not contribute to his offences or his unsoundness of mind”. As to the defendant’s reports of methamphetamine use, Dr Beech noted that amphetamines are known to produce a schizophreniform psychosis, particularly in vulnerable individuals. He opined that, if the defendant had used methamphetamines (including speed based ecstasy) in the week prior to the offences, it was “easily conceivable that his amphetamine use could have precipitated an amphetamine induced psychosis which would have endured through to 8 August and possibly longer”. As to amphetamine induced psychosis, Dr Beech stated that “methamphetamine intoxication, the ‘rush’ that speed users seek but which can be associated with confusion, aggression, and hallucinations, tend to last six hours (the ‘stimulant phase’) but a single dose can last up to 12 hours or more and periods of chronic intoxication can endure for longer”. He explained that under some (uncommon) circumstances it can have a half life of up to 30 hours which by extrapolation using 4 half lives would equate to an active period that could conceivably endure for 5 days. On the basis of the defendant’s report to Dr Beech that he had not used amphetamines for some months prior to the alleged offences, Dr Beech did not believe that amphetamines could have attributed to his mental state, nor that amphetamine intoxication would have been a cause of his psychosis or would have contributed to it.
Dr Beech accepted that schizophrenia, perhaps triggered by past cannabis use, was a possible differential diagnosis, observing that 50 per cent or more of people who are diagnosed with cannabis induced psychosis are subsequently re-diagnosed with schizophrenia. Dr Beech noted that heavy cannabis use is believed to be one factor that can trigger schizophrenia in vulnerable individuals. In the defendant’s case, he considered that the evidence supporting a diagnosis of schizophrenia was that the defendant’s symptoms themselves were schizophrenic in nature and seemed to have been mounting for some weeks prior to the incident. Additionally, the symptoms following the incident were of two weeks or more duration and subsided with anti‑psychotic use. Also relevant was the defendant’s response to withdrawal of medication, in respect of which Dr Beech shared Dr Rendle-Short’s concern that the defendant’s symptoms in December/January 2009 “presaged the onset of a relapse of schizophrenia which was aborted by the timely reinstitution of anti-psychotic medication”.
Dr Beech stated that, in any event, it may be:
“… a moot point as to whether [the defendant] suffered from a drug induced psychosis or a drug triggered episode of schizophrenia for the purposes of the Mental Health Court findings in that both the drugs induced psychosis and schizophrenia could be seen as a mental illness. Drug induced psychoses, by both cannabis and amphetamines, are transient but nonetheless they continue past the time that the drug is physiologically present in the body. The disturbances of thought, cognition, and behaviour persist despite the elimination of the chemicals from the body.”
I note that Dr Beech provided a further report dated 26 June 2009, after he had had an opportunity to peruse additional material, including toxicology results. He maintained a diagnosis of substance induced psychosis, with a differential diagnosis of schizophrenia, accepting that the clinical description of the defendant’s symptoms at and after arrest were consistent with such an illness and that there were concerning features in the defendant’s clinical history and relapse, which also suggested a process of schizophrenia. Dr Beech considered that that diagnostic dilemma was one that the passage of time would clarify. In relation to the role of intoxication from amphetamine use and the varying reports of the defendant as to the use of that drug, Dr Beech stated that he considered it was “possible” that use of amphetamines in the days or perhaps weeks preceding the incident could have triggered an amphetamine induced psychosis, but that an amphetamine induced psychosis was unlikely if the drug had not been used in the preceding week. On his consideration of all the material, Dr Beech considered that the more likely explanation for triggering or inducing the psychosis was cannabis. As to the role of cannabis, Dr Beech explained:
“The psychological effects of cannabis, within minutes of smoking, reach a plateau lasting two hours or more. Untoward mental effects of cannabis include psychological responses that would incorporate psychosis (toxic psychosis) as well as a deleterious effect on pre-existing mental illness. The toxic psychosis of cannabis has limited studies. Overall they suggest that cannabis in high doses can produce a toxic psychosis in individuals who have no history of severe mental illness. The main features are mild impairment of consciousness, dream like euphoria that progresses to fragmented thought processes and hallucinations that generally resolve within a week of abstinence ... There are reports that among cannabis users, 15% will identify psychotic symptoms such as hearing voices or having unwarranted feelings of persecution or risk of harm from others. Subsequent partial re-experience of symptoms when drug-free are rarely reported after cannabis use.
THC in an unchanged form disappears quite rapidly from the circulation but elimination of the drug from the body is in fact complex and takes several days. This is because the fat-soluble THC and its metabolites are gradually excreted. Overall there is an elimination half-time of three to five days and some metabolites may persist for several weeks. The major metabolite 11-nor-THC can give positive results for days or weeks after a single drug exposure. The proportion of this metabolite relative to the unchanged THC increases with time and the ratio can indicate fairly accurately how long ago cannabis was consumed. While THC can persist in the body there is no evidence that this THC residue persists in the brain and slow leakage of THC from fat tissues into blood does not give rise to drug levels that are high enough to cause any psychological effects.”
Dr Beech thus concluded that the defendant’s presentation was “likely to have been due to a cannabis induced psychosis and it was this psychosis that deprived him of the relevant capacities at the time”. Dr Beech emphasised that the psychosis persisted for some time after the alleged offences and “given the display in the video footage and Dr Heffernan’s reports, it may have even worsened”.
It was apparent from Dr Beech’s oral evidence that his opinions had crystallised further since compiling his reports. He expressed the firm view that the only drug of relevance in terms of the issue of intoxication was cannabis. What discounted any other drug was the “simple complete absence … on testing of other drugs”. Dr Beech was clear in his evidence that the blood tests would have picked up recent amphetamine use, stating, “In fact, what I believe the blood tests show is, in fact, he hadn't recently used within the days of [the assault on 29 July] amphetamines”.
I note that although Dr Beech made reference in his report to intoxication in terms of inebriation and drunkenness, in his oral evidence he made it clear that he considered the defendant not to be intoxicated, bearing in mind the DSM-IV-TR distinction between substance intoxication and substance induced psychotic disorder; namely the psychotic symptoms were in excess of those usually associated with intoxication and sufficiently severe to warrant independent clinical attention. The indicia of psychosis, which Dr Beech specifically identified, was the absence of intact reality testing.
Dr Beech was referred to the definition of intoxication in the decision of R vClough [2010] QCA 120, but continued to maintain his view on the issue of intoxication. In essence, the effect of Dr Beech’s evidence was that he saw the defendant’s cannabis use as a precipitant, in historical terms, of his psychosis, but that at the relevant time the psychosis continued of its own accord, so that intoxication was not a factor. This is apparent from the following exchange with counsel for the DPP:
“All right. Now, doctor, what then, in your opinion if he was not intoxicated - what then is the explanation as far as he is concerned as to why he behaved this way?-- He wasn't intoxicated. The explanation is that he was psychotic, that he had to go see his father where heaven was and on the way he encountered people who seemed to be obstructing him. He's no clear recollection of the actual assault. The next recollection is being on the ground, as I remember, and then - and being held and - his account of the way he acted on the ground was that he thought he was in hell. The account on the way he acted in the watch-house was because he believed he was in hell and that psychosis, that delusion of persecution, persisted, I think, when he went into the hospital because even then he didn't want to take medication because he thought they were trying to poison him.
…
Are you, as it were, adamant that when one looks at the mental state that obtained that day, the mental state that led to the deprivation of the capacity to know that he ought not do the act, that mental state did not in any way, shape or form result from the voluntary ingestion of drugs?-- If I look solely at the mental state I can’t say that. When I look at the history that was provided, when I look at the results of the blood analysis, yes, I say that. I say that it is a florid psychosis. Drug induced, I agree, but it is not intoxication. … That mental state is due to psychosis. That mental state is the result of a psychosis which has probably been brewing for a couple of weeks beforehand, escalated over the weekend, continued through into the next week and then continued for another 12 days or more after the assault.It had nothing to do with the voluntary ingestion of any drugs?-- That’s my opinion.
Why does it resolve so quickly then?-- I think the question is it doesn’t actually resolve that quickly. As I read the clinical records, it takes 14 days to resolve. That’s a long time in terms of intoxication. I mean, cannabis – you smoke cannabis, the effects are gone two, three four hours. You shoot up speed, the effects are gone six, seven hours later. This man is psychotic for two weeks. That’s not intoxication, that’s psychosis.”
Dr Beech thus saw the situation as one where the psychosis initially arose in the presence of intoxication but, at the time of the alleged offending, continued independently of the intoxicating substance. In response to a question from Dr Chalk, one of the assisting psychiatrists, Dr Beech indicated that he adhered to that view, even if the last ingestion of cannabis had been on 26 August 2008, stating:
“I think by the time of the offence he had a drug-induced psychosis. [It] was free running. It was depriving him of reality testing and that the deprivation arose from that psychosis. Now, if he had used other substances on that day, then … I could see them as contributing to that deprivation, but I would have to say also that even if he used substances on that day I would think it possible that the effect of that substance abuse may not have added much to the burden of psychosis that he had and the reason I say that is because when you read the clinical notes by the 1st of August, 2nd of August, he is still clearly psychotic, unable to concentrate, unable to toilet himself, being held in seclusion, so I think that a psychosis by that stage is so florid that it is hard to see that you could really have made it much worse with some substances. …”
I hasten to note that there is no evidence of the defendant having taken any illicit substance on the day of the alleged offending and of course, in making his point, Dr Beech was not suggesting that there was.
Dr Van de Hoef’s report
Dr Van de Hoef provided a report dated 7 October 2009, after considering the reports of the other clinicians and the evidence given in court. She noted that Dr Voita, in attempting to appraise a number of troubling aspects of the case, highlighted the following:
(a) The fact that the florid psychosis settled more quickly (and apparently completely) than in the case of some other patients;
(b) That the defendant and some of his acquaintances gave different, inconsistent accounts as to the timing and extent of his drug use;
(c) That the defendant made some statements to medical staff in late August 2008 that he had been “overstating” his symptoms and needed to “come clean” perhaps implying he may have been malingering.
In respect of diagnosis, Dr Van de Hoef stated:
“In my opinion, after considering all the available material, [the defendant] was clearly floridly psychotic with a schizophreniform psychosis, with catatonic features, at the time of the serious offences in July 2008. He may have been delirious as well for some time. He remained psychotic for at least 2 weeks.
I think he also shortly before fulfilled diagnostic criteria for Cannabis Abuse and Dependence, and in previous times (2001/2002) may have fulfilled criteria for Amphetamine Abuse and Dependence. I think there is evidence he had Conduct Disorder, which may have declared itself in the context of poly drug abuse.
At the time of the July 2008 offences, he was extremely agitated, disorganised, paranoid, hallucinated and experienced intense bizarre, persecutory, religiose and autochthonous (suddenly occurring, fully formed) delusions. Most worryingly, they appear, from the witness accounts, to have related to Kerri Webb, and that the attack on Mrs Moore was actually a psychotic misidentification, and an attempt to kill Kerri based on delusional beliefs.
… He was sure he had never experienced anything like it previously in his life, ‘except for the last time (he) stopped pot’, in late 2007, when for about a day he thought his girl friend was an undercover policeman. In his recollection, the symptoms in July 2008 had not preceded the cessation of cannabis; he said he was just ‘a bit paranoid about equipment being stolen from work sites’, or that his trainer from boxing was surreptitiously getting him work, which he regarded as merely normal concerns.
This psychotic episode, whether it began on or around 25/7/2008, or 2 to 3 weeks earlier (if Kerri Webb’s second account is the true position) was the most prolonged and serious of his life. He had, I think, clearly experienced psychotic symptoms (persecutory delusions, visual hallucinations, and disorganised thought) before, in the context of intoxication. The experience with ice at the age of 18 was an example, lasting at least 2 days. Symptoms that settled within (perhaps 2 to 3 days) also led to the conclusion of intoxication driving the serious offence with a knife in 2001.
The history of the brief episode in late 2007 is intriguing, as it raises the possibility of a (recurrent) cannabis withdrawal psychosis (or delirium) which is theoretically possible, but about which I can find little information. [The defendant] also belongs to a modern cohort of poly drug users whose level of consumption, regularity and chronicity of use (particularly of hydroponic marijuana) is not well described in DSM, or the pharmacokinetic graphs which were compiled testing a different sort of drug abuser. I think it is likely he was psychotic for longer than he thought, and perhaps for longer than the treating team thought.
I cannot accept that he malingered his gross symptomatology to any significant extent. I am far more persuaded he concealed residual psychotic symptoms, as he feared going to the MHC process (again).
It is possible, too, he has schizophrenia, and this episode represents his first true episode, with a short lived flare up in late 2008 (since treated by Dr Rendle-Short.)”
Dr Van de Hoef noted the differing accounts of drug use, stating:
“I appreciate that during his HSIS admission, he gave varying accounts of the time frame of drug use, which were noted by the treating team. Normally, I would agree with Dr Voita about the earlier accounts of the offence being less likely to be ‘contaminated’ by other agendas. In this case though, with 10 days in seclusion, catatonic features and incontinence, I think it is also possible he may have been too disorganised and confused to be reliable then, either.
It is of course possible that he lied about the use of other psychotogenic drugs (especially amphetamines and LSD) and about the temporal relation of that use to the serious violent offences. After all, he is a man who had done jail time after not getting a mental health defence on the grounds of intoxication being an issue. However, he tested negative (at least twice) to anything other than cannabis close to the material time. I therefore conclude it is much more probable that even if he had been intoxicated with, say LSD or amphetamine, in the week before the offences of July 2008, that he was not intoxicated at the time, but that a drug induced psychosis (or withdrawal psychosis or delirium or schizophrenia) had taken over then, and drove the offences. This psychotic episode was severe, the longest of his life, and was qualitatively different from other episodes in his life. It was perhaps short lived compared to some experienced by other patients at HSIS, but I estimate it lasted at least 4 weeks, and may have lasted much longer … I think the time frame is not well explained by intoxication, but is well explained by a schizophreniform psychosis.” (emphasis added)
As is clear from the above extract, Dr Van de Hoef specifically considered the scenario of drug use in the week before the events in July 2008 but was still unable to conclude that intoxication was a contributing factor. She was heavily influenced in this view by her assessment of the nature and extent of the defendant’s psychotic symptoms.
In giving evidence, Dr Van de Hoef was closely questioned about the matter of intoxication and was very clear that she discounted intoxication as contributing to any extent to the defendant’s state of mind resulting in deprivation. She dismissed the notion that she simply proceeded on an uncritical acceptance of what was reported to her as to the defendant’s drug taking, stating:
“You have to always take a history with a - more than a grain of salt but try as I might I can't be persuaded that someone who is psychotic for - well, I believe probably a couple of months afterwards, how that fits with intoxication. I don't think it does and I don't think his illness fits at all well with any kind of timeframe to do with intoxication, whether it's LSD, methamphetamine or cannabis intoxication. It's possible that this illness had its onset two to three weeks before the commission of those serious offences and I think it's possible that the symptoms persisted, even though he didn't report them, till probably November of that year. And then Dr Hugh Rendle-Short I think correctly diagnosed either a mild exacerbation of symptoms or a continuation of symptoms following Christmas of that year.”
Dr Van de Hoef was quite emphatic in her view that intoxication did not contribute to the defendant’s state of mind resulting in deprivation, stating, “I just can't find any evidence to support that and I find features in the history that actually argue against it”.
I note that Dr Van de Hoef also continued to maintain her reservation in respect of a diagnosis of substance induced psychosis, preferring that of a schizophrenic illness. While she thought the former diagnosis was possible, she did not favour it on balance, ruling out amphetamine induced psychosis given the blood test results and observing in relation to cannabis induced psychosis that:
“If we look at the substance induced psychotic disorder the problem with that is that he was ingesting enormous amounts of this drug for 12 months and didn't become psychotic. It's when he tapered his use or stopped it altogether that he seems to have developed the symptoms. ... he'd been stoned around the clock for over 12 months and running a business and getting his life on track and then something happened just prior to the commission of the violent offences and I think that's something with the development of a severe schizophrenic or psychotic disorder.”
Additionally, when questioned by Dr Chalk as to whether a cannabis induced psychosis, even in somebody that uses high doses of hydroponic cannabis, would normally result in a presentation such as the defendant’s, Dr Van de Hoef replied:
“Not in my experience. I think he was so floridly unwell as to put him outside the usual range of the people I've seen, even heavy hydroponic regular users, even those probably dependent on the drug who become psychotic for whatever reason along the way.”
Conclusion as to whether the defendant was of unsound mind as defined in the Mental Health Act
The matter for determination is whether the defendant was “of unsound mind” at the time of the alleged offences having regard to Schedule 2 to the Mental Health Act 2000 (Qld) (“the Act”) where the following definition appears:
“‘unsound mind’ means the state of mental disease or natural mental
infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
All the reporting psychiatrists considered that at the relevant time the defendant was floridly psychotic and deprived of at least one relevant capacity as a result thereof, although they differed as to the nature of the defendant’s diagnosis. Dr Voita favoured a diagnosis of “substance induced psychotic disorder” while Dr Beech diagnosed a “substance induced psychosis”, but was not prepared to affirm that diagnosis as definitive, accepting schizophrenia as a differential diagnosis, which could only be eliminated with the benefit of a longer timeframe. Dr Van de Hoef opined that the defendant was suffering from a “severe schizophreniform psychosis” and leaned towards a diagnosis of schizophrenia. Dr Van de Hoef gave compelling and persuasive reasons in support of that view, including a careful analysis of the nature of the defendant’s symptoms and their duration and the defendant’s longitudinal psychiatric history, together with the unlikelihood of cannabis induced psychosis (given the defendant’s heavy use of cannabis without incident over the preceding twelve months) and the lack of objective collateral evidence of amphetamines or other illicit drugs to support a substance induced psychosis. I also note that Dr Van de Hoef’s opinion of the longer sequel to the defendant’s mental illness relevant to her conclusion as to diagnosis, although contrary to Dr Voita’s view, coincided with that of Dr Beech and drew support in the advice of the assisting psychiatrists.
It was submitted on behalf of the DPP that, pursuant to s 269 of the Act, there was a substantially material dispute in relation to the defendant’s drug consumption prior to the events in question, such that it would be unsafe to proceed to determine the issue as to whether the defendant was of unsound mind. The dispute stemmed from the inconsistencies as to drug use reported to Dr Voita. I note that, as Drs Beech and Van de Hoef concluded, there was no reliable objective basis for considering that LSD, steroids, or for that matter amphetamines were operative individually or collectively. I note that Dr Beech, who expressed some possibility of amphetamine induced psychosis in his reports because of the inconsistencies in the defendant’s account, was quite adamant in his oral evidence that it was, on balance, excluded, largely because of the lack of detection of any relevant substances in the blood tests that were conducted. Likewise, Dr Van de Hoef was similarly very clear on the matter. In her report, she expressly considered the scenario of the defendant being intoxicated with illicit substances, such as LSD or amphetamine, in the week before the offences of 29 July 2008, and still concluded that it was the defendant’s psychosis that drove the offences and not intoxication from any substance. And, I note that when pressed on the matter, Dr Voita indicated that the drug she considered on the balance of probabilities the defendant to be intoxicated with was cannabis.
Counsel for the DPP also contended there was a s 269 dispute stemming from the two differing reports of last use of cannabis (on 24 and 26 July 2008). It was said that this amounted to a dispute concerning a substantially material fact, and that the opinions of both Drs Beech and Van de Hoef simply proceeded on the basis of the account given to them of last use on 24 July 2008. This misrepresents the situation. I note that in fact all the reporters considered the alternative scenarios as to cannabis use but still maintained their respective views as to intoxication. In this respect, I note that Dr Beech was expressly asked to consider both accounts and maintained his view that intoxication was not a contributing factor to the defendant’s deprivation, even if the last use of cannabis was on 26 July. That was also the tenor of Dr Van de Hoef’s evidence. Similarly, Dr Voita maintained her position that intoxication continued to be relevant, whether the last use of cannabis was on 24 July or 26 July. It was evident, therefore, from the oral evidence of the clinicians, that each maintained his or her view in relation to intoxication even after having taken into account the reported inconsistencies.
In those circumstances, I do not consider that there is a dispute relating to a substantially material fact which precludes the court from determining the reference. Rather, the question for the court is as to which expert opinion should be accepted. On balance, for the reasons set out above, I prefer Dr Van de Hoef’s expert opinion as to diagnosis, which was supported by the advice of Dr Chalk.
On the issue of intoxication, both Dr Beech and Dr Van de Hoef gave very closely reasoned opinions for their clear rejection of the proposition that intoxication was not to any extent a contributing factor to the state of mind resulting in deprivation. Both pointed to the absence of amphetamine or other illicit substance, apart from cannabis, in the drug screen tests. In addition, Dr Van de Hoef gave cogent reasons for discounting the defendant’s earlier accounts of amphetamine use, from a clinical point of view, not only because they were not borne out by the drug screen tests, but also because some were made when the defendant was still experiencing psychotic symptoms, not orientated in place and date and at one stage mis-identifying a doctor for his girlfriend. Ultimately, all the clinicians pointed to cannabis as the pertinent drug for consideration in terms of intoxication. As I have already mentioned, Dr Van de Hoef made out a compelling case for excluding cannabis intoxication as contributing to the defendant’s deprivation of capacity, pointing out that notwithstanding very heavy cannabis use over a 12 month period, there had been no psychotic episode, except briefly on cessation of use in late 2007. Both Drs Beech and Van de Hoef expanded on their reasoning as to why, unlike Dr Voita, they considered the defendant’s psychotic symptoms could not be seen as short lived. They both enunciated a strong basis for maintaining the view, in Dr Beech’s case, that a cannabis induced psychosis, and in Dr Van de Hoef’s case, that a schizophreniform psychosis, was operating at the relevant time and that intoxication did not contribute to any extent in the relevant deprivation.
In this complicated case, I was greatly aided by the opinions of the assisting psychiatrists, whose advice favoured the position put forward by Drs Beech and Van de Hoef in rejecting the proposition that intoxication from illicit substances was a factor to any extent in the defendant’s deprivation of capacity. I accept their views and am satisfied on the balance of probabilities that intoxication did not to any extent contribute to the state of mind resulting in deprivation of capacity and that the deprivation was solely the result of the defendant’s psychotic illness. In reaching that conclusion, I am mindful of the approach taken in R v Clough [2010] QCA 120 as to the meaning of intoxication. I also note the observations of Applegarth J at [38] – [41], that the conclusions reached by Dowsett J in Re Plant, unreported, QMHT (27 March 1998) accord with the approach to the meaning of “intoxication” adopted in Clough. I respectfully agree with that observation.
Forensic Order
There is no doubt that a forensic order is required in this case bearing in mind the very serious and violent offences, the defendant’s treatment needs and the need to protect the community.
In supporting the imposition of a forensic order, Dr McVie gave the following advice:
“[The defendant] has not been in mental health treatment for the last 15 months. His longitudinal history indicates the likelihood that his illness, if it recurs, will be severe. He has had two clear episodes of serious extreme violence in the context of psychosis and the risk needs to be managed. I think he needs close forensic evaluation and certainly review of his current medication and review of his current risk assessment. One of the factors at the time of the offence was the misidentification of the female victim as Ms Webb and I think there are other instances in his reports where he has misidentified other people, particularly women. Delusional misidentification is a risk factor … and is not a very good prognostic factor when looking at risk of future violence.
The other point, I think Mr Vasta made that his delusional beliefs were similar to those from 2002. This may actually give some weight to the fact that there is an underlying process schizophrenic illness and also indicates severity of risk. I think [the defendant] presents an extreme long-term risk, needs close ongoing forensic evaluation and very clear management. I did ask Dr Van de Hoef about management and her advice was that he would be reasonable with continued community management. I have some issues with that as Toowoomba to date has not accepted him as a patient and will only do so once he becomes a forensic patient.”
Dr Chalk also raised concerns about future management, stating:
“I am concerned and I asked Dr Van de Hoef about the content of this man's delusions at the time and what I think was clearly delusional misidentification. And I would concur with Dr McVie that this is a very serious symptom and he is clearly a very dangerous man when he is unwell and he needs to be properly and appropriately managed. ... I'd like to make reference to his ongoing management because I think that whilst he appears to have been well managed within Teen Challenge over a period of time, I have grave concerns about the future. And about this man's propensity to relapse quite suddenly and great concerns about people's ability to not only monitor him but to treat that appropriately. Thankfully, when he relapsed in late 2008 he appears to have been treated appropriately, medication was instituted and his symptoms settled.”
In relation to the issue of future management, I note that while Dr McVie advised that the defendant had been functioning in the community and that it was possible that the defendant could be properly assessed in Toowoomba as a community patient with full limited community treatment, she did express some reservations about proceeding in that manner as did Dr Chalk, who advised that it is important that a forensic evaluation be done in the immediate future. He considered that the mental health service would need to “look at all of the risk factors, that'd take account of all of the material before this Court and that this man be treated with circumspection, close monitoring and that the treatment team, and those around him, are aware of the concerns of the psychiatrists, both who assist him and those who've given opinions in this Court”. I also note that Dr Van de Hoef quantified her evidence that the defendant could be dealt with in the community with full limited community treatment, indicating that she had not seen the defendant for a considerable time.
It is a matter of concern that, while the defendant has been functioning well in the community, no thorough forensic evaluation has been made in recent times. Given the need for circumspection in the light of the serious potential for risk and for a comprehensive appreciation of all those risk factors, and the complications associated with diagnosis, I do not consider that full limited community treatment should be accorded at this stage.
Accordingly, I order that the defendant be detained to the Toowoomba Area Network Authorised Mental Health Service with limited community treatment confined to escorted leave on and off the grounds, on the following conditions:
(i) That the patient is to remain under the escort of the health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;
(ii) For the purposes of escorted limited community treatment, that the patient comply with the directions of the nominated staff member/s for the duration of the limited community treatment.
I direct that a copy of the transcript of the proceedings be provided to the treating team and the Mental Health Review Tribunal on any review of the forensic order.
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