Re Stephensen

[2012] QMHC 32

MENTAL HEALTH COURT

CITATION:	Re Stephensen [2012] QMHC 32
PARTIES:	REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF ANDREW JOHN STEPHENSEN
PROCEEDING NO:	No. 0133 of 2010
DELIVERED ON:	4 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 September, 4 October 2012
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr J M Lawrence
FINDINGS AND ORDERS:	That at the time of the alleged offences the defendant was not of unsound mind; That the defendant is not fit for trial and that unfitness is of a temporary nature; and That the finalisation of the Forensic Order is adjourned to a date to be fixed.
COUNSEL:	C Morgan for the defendant J Tate for the Director of Mental Health J Thomas for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Office of the Director of Public Prosecutions (Qld)

ANN LYONS J:

Background

1. Mr Andrew Stephensen is currently 28 years of age. He was placed on a Forensic Order by Philippides J on 30 October 2010 when he was found not to be of unsound mind but permanently unfit for trial in relation to 21 offences which had occurred between November 2007 and September 2008. Most of those offences were public nuisance offences and trespass offences but also included one count of assaulting police, two counts of obstructing police and one count of possessing a knife in public.

1. Justice Philippides noted that a previous Forensic Order had also been made, also on the basis that he was permanently unfit for trial due to his intellectual disability.  Her Honour referred to his past history of epilepsy, organic brain difficulties and neurological problems.

1. Mr Stephensen was detained to the Cairns Network Authorised Mental Health Service with Limited Community Treatment (“LCT”) to commence immediately. Justice Philippides noted that whilst Disability Services Queensland (“DSQ”) had offered services to Mr Stephensen he had declined assistance and DSQ had disengaged with him. Her Honour urged that support be provided to him across Departmental barriers, given his intellectual impairments.

This reference

1. There are currently five references before the Court dated 4 June 2010, 30 May 2011, 11 January 2012, 13 February 2012, and 28 August 2012. Mr Stephensen faces another 21 charges in a period from 1 February 2009 to 3 March 2012. They include multiple charges of assault or obstructing police; multiple charges of trespass; multiple charges of committing public nuisance; multiple charges of possession of drugs, as well as one charge of stealing. He also faces one count of possessing dangerous drugs which are schedule 1 drugs in a quantity exceeding schedule 3 but less than schedule 4.

1. The material indicates that Mr Stephensen was fully aware of his conduct and knew that what he was doing was wrong. There is no evidence to support a finding he was of unsound mind. I am therefore satisfied that Mr Stephensen was not of unsound mind at the time of the commission of all of those offences.

1. The real issue in this reference is whether Mr Stephensen is unfit for trial and whether that is a permanent unfitness.  It is clear that a previous finding of permanent unfitness does not preclude a later finding of temporary unfitness or a finding that Mr Stephensen is fit for trial.

1. The difficulty with this reference is the divergence in the opinions of the reporting doctors, the lack of certainty about the presence of a mental illness and the lack of certainty about his current fitness for trial.

Professor O’Brien’s report

1. Professor O’Brien, in a report dated 22 September 2011, indicated that Mr Stephensen is a 27 year old man with a long history of disturbed behaviour. He indicated that Mr Stephensen has previously been diagnosed with schizophrenia and has been receiving treatment for that mental illness since 2008. It is also considered that Mr Stephensen has a head injury. 

1. Professor O'Brien noted that Mr Stephensen has presented with regular offending behaviour over several years and, whilst the charges were initially in the range of public nuisance and threat, more recently there have been more signs of more organised and serious crime, including the use of knives and alleged assaults of others in the context of his drug dealing.

1. He also notes that he has an entrenched habit of polysubstance abuse and there is a documented history of him being in a distressed frame of mind while intoxicated with drugs. A number of government bodies have been involved in his care in the past including the Adult Guardian and DSQ. Professor O'Brien notes that those bodies have commented that he is an impulsive, dangerous and reckless young man and shows signs of being very aware of what he is doing. Professor O'Brien does not consider there have been any signs of psychosis over the past two years.

1. Professor O'Brien reviewed a number of reports from psychiatrists over the period of 2010 and 2011, as well as reports from an occupational therapist and from Disability and Community Care Services. In particular, Professor O'Brien noted Dr Ricardo Caniato’s report of 17 February 2011 where Dr Caniato indicated that there was some dispute as to whether Mr Stephensen suffers from a psychotic illness.

1. Professor O’Brien noted a report from Dr Alexander Lider of 13 April 2010 which also indicated that Mr Stephensen’s major difficulty was his intellectual disability but he did not consider that Mr Stephensen was mentally ill. In particular, Dr Lider considered that Mr Stephensen uses the label of intellectual disability quite well and that he has been in a situation over the years where he has not been held to account for his actions because of his reliance on his intellectual disability.

1. Professor O’Brien also considered Dr Goldner-Vukov’s reports, which indicate that whilst Mr Stephensen had been previously diagnosed with chronic schizophrenia, he was not currently psychotic. Professor O'Brien indicated that the real issue is whether his lack of overt psychotic features is due to the fact he has been having long-term depot antipsychotic treatment.

1. Professor O'Brien indicated that when he interviewed Mr Stephensen in July 2011, Mr Stephensen was able to give him a detailed and complex account of his everyday actions as long as the questions were not associated with his offending behaviour. Professor O'Brien noted that whenever he tried to discuss the offending behaviour, he would either refuse to speak or shrug it off by saying he was drunk or drugged at the time.

1. Professor O'Brien also indicated that he tested Mr Stephensen in relation to current events in Cairns and considered that he had good short, medium and long-term memory and was able to give a full and detailed account of everyday facts and had a good grasp of general events. He also noted that Mr Stephensen did not speak in simple, short sentences but had quite an organised sentence structure. Furthermore, he did not ramble on and his answers were to the point and were organised.

1. Professor O'Brien agreed with Robert Moody’s report that Mr Stephensen had a good grasp of basic computation and had sound financial skills. He also considered that Mr Stephensen had basic literary skills at the level of a nine or ten year old. He considered his level of literacy was sufficient for every day purposes. Professor O'Brien considered there was no evidence of mental illness and there were no signs of hallucinations or delusions.

1. Ultimately, Professor O'Brien considered that Mr Stephensen’s capacity for memory, understanding logic, expressive language skills, vocabulary, reading and computation skills and his ability to take care of himself is not that of someone who has an intellectual disability.

1. Professor O'Brien considered Mr Stephensen was a man with a long history of disturbed behaviour and a previous diagnosis of schizophrenia. He is on long-term antipsychotic treatment for that illness. He considers that Mr Stephensen has an entrenched and complex pattern of criminality and his conclusion is that Mr Stephensen does not show evidence of intellectual impairment of a degree which constitutes intellectual disability.

1. Professor O’Brien does not consider that Mr Stephensen is within the scope of the Forensic Disability Service.  Professor O'Brien noted that two psychiatrists have proposed that Mr Stephensen’s need is for medium secure treatment within the Mental Health Service for the purposes of assessment and rehabilitation.

1. In an updated report, Professor O’Brien reviewed the report of Dr Russell of 20 February 2012. Dr Russell had carried out psychometric testing which indicated that Mr Stephensen is of borderline intelligence. Professor O'Brien indicated that such a level of intelligence is at a higher functioning level than an intellectual disability and indicates that Dr Russell’s report confirms his own view that Mr Stephensen does not have an intellectual disability.

Report of Dr Sarah Russell

1. Dr Russell is a clinical neuropsychologist and she conducted extensive testing of Mr Stephensen during a two hour assessment in January 2012. Dr Russell noted a history that Mr Stephensen gave her of head injuries when he was a child and also an accident when he was working on a mining site. Dr Russell noted that Mr Stephensen’s files have been unable to be located to confirm those injuries.

1. Dr Russell noted that he was given a provisional diagnosis of schizophrenia in 2004 and 2005 in Townsville and again in 2007 in Cairns. He has had multiple admissions to the Mental Health Unit at the Cairns base hospital and was placed on a Forensic Order in November 2008. She noted that Mr Stephensen has had previous diagnoses of intellectual disability, antisocial personality disorder, polysubstance abuse and a possible psychotic disorder. She noted a reported history of alcohol and marijuana misuse. She indicated there was no documentation of any previous psychometric testing.

1. Dr Russell noted that the diagnosis of intellectual disability was questioned by Professor O'Brien. She observed that his report had indicated that Drs Lider, Caniato and Goldner-Vukov considered that Mr Stephensen was of unsound mind at the time of the previous offences and that Drs Lider and Caniato were of the opinion that Mr Stephensen was permanently unfit for trial due to his intellectual disability. Dr Goldner-Vukov, however, was of the opinion that Mr Stephensen was fit to stand trial.

1. In her conclusions Dr Russell indicated that, based on Mr Stephensen’s performances on the testing, his current level of intellectual functioning was assessed in the borderline range and that he performed better than three to four per cent of people his age. She considered that his results were lower than expected given his presentation because he quickly understood task requirements and did not need clarification or elaboration of instructions and promptly used his mobile phone as a memory aid to check the date.

1. Dr Russel also noted that the results of his testing were inconsistent with reports from staff that he manages self care without prompting and was considered capable of living alone. She considered that such discrepancy may be explained by the presence of significant attentional and executive weaknesses which underlined his test performances.

1. Dr Russell stated that he was observed to be distractible, inattentive and lacked persistence. She considered he was rigid and concrete in his thinking and lacked the capacity for abstract thought. His approach to task was impulsive and reflected poor planning and organisational abilities. She stated that it was likely that part of his hesitation at attempting tasks and his tendency to give up was due to a lack of confidence in his abilities acquired through a lifetime of failure. Dr Russell said that the results of the current assessment indicated that his level of cognitive functioning falls in the borderline range reflecting a significant degree of compromise. Although he struggled with most tasks administered, he had particular difficulty with verbal tasks and his profile reflected a significant degree of impairment in attentional and executive functioning. 

1. Dr Russell considered that in light of his presumed history of head trauma as a child, together with the accident at the mine site and the history of substance abuse possibly compounding the original brain injury, Mr Stephensen’s cognitive impairment and presentation are consistent with an acquired brain injury rather than an intellectual disability.

1. Dr Russell stated that, given the previous psychiatric reports, she considered that Mr Stephensen’s degree of cognitive compromise would mean that he was permanently unfit for trial, particularly in relation to his ability to understand and follow the proceedings of the trial and provide a considered opinion to instruct a solicitor in his defence.

1. Dr Russell indicated, however, that she had not been able to complete her testing and she had not actually tested his actual ability having regard to the Presser criteria. Dr Russel indicated that her opinion was based on the incomplete cognitive testing and the previous findings of the Mental Health Court. 

Dr Caniato’s Reports

1. Dr Ricardo Caniato provided a report dated 17 February 2011 and an update Report dated 2 April 2012. In that more recent report he noted Dr Russell’s report and the conclusion that there are two psychiatrists who now consider that Mr Stephensen is fit for trial. In particular, he considered that Dr Russell’s report indicated that Mr Stephensen does not have a diagnosable intellectual impairment but that he is in the borderline range. He noted, however, that Dr Russell concluded on the basis of her report that Mr Stephensen would not be fit for trial.

1. Dr Caniato, however, considered that intellectual functioning in the borderline range does not necessarily represent intellectual impairment under current definitions and would usually indicate that someone is fit for trial. He did not consider that Dr Sarah Russell’s report actually supports a conclusion that Mr Stephensen is unfit for trial.

1. Dr Caniato’s current view is that the greater consensus of opinion supports the contention that Mr Stephensen is fit for trial, but Dr Caniato was still unable to come to a definite conclusion given Mr Stephensen’s long history of a psychotic illness. He considered that it may well be that Mr Stephensen is fit for trial but agreed that he may be considered fit at the moment because he has been in a structured environment for over 12 months and has been consistently receiving antipsychotic medication.  He is concerned that there is still a lack of clarity and certainty.

1. In terms of unsoundness of mind, Dr Caniato considered that the reports of Dr Goldner-Vukov and Professor O’Brien indicate that Mr Stephensen does not have a mental health defence.  Dr Caniato also stated that, having considered that new material, he does not consider that he could have a confident conclusion that Mr Stephensen was of unsound mind and that therefore alters his previous opinion. He considered that, based on the new information, there is now sufficient evidence to indicate that on the balance of probabilities Mr Stephensen was not of unsound mind at the relevant time.

1. Dr Caniato considered that there was some logic in the conclusion that it would be appropriate to place Mr Stephensen in the secure Mental Health Unit for the purposes of assessment and rehabilitation, but noted that, in the absence of a mental health defence or unfitness for trial, the placing of Mr Stephensen in a secure Mental Health Unit as opposed to a custodial sentence in a mainstream prison is a complex, practical and ethical matter.

Dr Lider’s Reports

1. Dr Lider, in a report dated 18 April 2012, referred to his previous reports in 2009 and 2010 and indicated that Mr Stephensen has a condition of borderline intellectual disability with severe behavioural issues due to antisocial personality disorder with alcohol and drug misuse. He considered that the likely duration of those conditions was permanent. He considered that those mental deficiencies determine the majority of his actions. It was his view, however, that at the time of all of the offences Mr Stephensen was not restricted in the capacity to know what he was doing and was not deprived of the capacity to control his actions. Neither did he consider that Mr Stephensen was deprived of the capacity to know he ought not do what he did.

1. Accordingly, he did not consider that Mr Stephensen was of unsound mind as defined in s 27 of the Criminal Code 1899 (Qld) (“Criminal Code”).

1. He did, however, consider that Mr Stephensen is permanently unfit for trial. His ability to understand the nature of the charges is slightly restricted and he has a poor understanding of the nature of court proceedings. Dr Lider considered that in the past Mr Stephensen had demonstrated that he does not have enough ability to instruct counsel in matters relating to his defence. Dr Lider, however, conceded that he had not conducted a specific assessment to test Mr Stephensen’s capacities in this regard.

1. Dr Lider noted that Mr Stephensen is street smart enough to know that, with his present condition of unfitness, he is allowed to commit any offence without consequences for him.  He noted that Mr Stephensen had been treated in the community on an Involuntary Treatment Order (“ITO”). He noted that his LCT order was revoked by the Mental Health Review Tribunal (“MHRT”) because it did not reduce his criminal behaviour.

1. Dr Lider noted that Mr Stephensen belongs to a group of individuals who had not experienced any benefits from the Mental Health Act 2000 (Qld) and he occupies a bed in the acute Mental Health Unit but has fewer options regarding occupation, exercise and communication than he would have in a custodial environment. He considers that an appropriate attempt would be a longer rehabilitative admission in a secure unit for intellectually disabled persons.

Dr Goldner-Vukov’s reports

1. Dr Mila Goldner-Vukov is Mr Stephensen’s treating psychiatrist and she has provided a number of reports to the Court dated 6 May 2011, 26 May 2011, 18 November 2011, 17 January 2012 and 9 August 2012. She noted his working diagnosis of a moderate to severe intellectual impairment with antisocial personality disorder and a history of polysubstance abuse. She noted there was no evidence of a current psychotic disorder, although there was a possibility from the history of a ‘transient psychotic disorder’.

1. Dr Goldner-Vukov stated that his most recent admission to the Mental Health Unit was due to the MHRT revoking his leave. She outlined in her report his poor social support system and his use of drugs. He is hepatitis C positive and syphilis positive due to his promiscuous behaviour and his involvement in prostitution. He often absconds from the Mental Health Unit and when he returns he usually brings cannabis. He is often brought in by police.

1. In an update report dated 13 September 2012 Dr Goldner-Vukov indicated that she had reviewed Mr Stephensen on 13 September and that he was now diagnosed with a mild intellectual impairment. She considers that he has a fair understanding of the court process and considers that he is in a position to endure a trial. He considers that he is currently fit for trial.

1. She considered that his insight and judgment was fair and there would be no serious consequence to him if he were to go to trial. She considers that although he had a mild intellectual impairment he would be able to instruct counsel. She confirmed that he had a history of polysubstance abuse, mild intellectual impairment and antisocial personality disorder, hepatitis C and an itinerant lifestyle.

1. Dr Goldner-Vukov did not recommend a Forensic Order and she considered it was appropriate for Mr Stephensen to face court. Dr Goldner-Vukov considers that Mr Stephensen understands that his offences were committed when was away without permission from the Mental Health Unit. She considers that with support he would be able to instruct counsel on his defence and be able to explain his version of events.

The Advice of the Assisting Psychiatrists

1. Dr McVie indicated the clear evidence is that Mr Stephensen has a natural mental infirmity and a history of psychotic episodes in the past. She is concerned that whilst the current indications might be that he is currently fit for trial, that is based on the fact he has been in a structured environment for the last 12 months and receiving medication. Dr McVie noted that Dr Russell’s testing did not show significantly low cognitive levels and he might be marginally unfit.   

1. Dr McVie noted Dr Caniato’s view that a thorough review was required given his history of psychosis and considered that he may well have a low-grade schizophrenic illness. Dr McVie also was also concerned that there is a lack of any clear and confirmed past history, noting that Mr Stephensen has a history of giving incorrect information, particularly information about his relationship with his family which has now been shown to be incorrect.

1. Dr McVie considered that, given the lack of certainty in this case, her view was that Mr Stephensen should be thoroughly assessed in a medium secure Mental Health Service. She also considered that athorough neurological assessment is required by someone who has not been involved with him previously.

1. Dr Lawrence concurred with that advice, noting that in the face of the current uncertainty more assessments were clearly required. In her view a thorough review was required once and for all.  She considered that there should be full testing undertaken including imaging, EEGs, as well as full and comprehensive psychometric testing.

1. Dr Lawrence considered that, given the previous findings of permanent unfitness, he should be considered to be unfit but, given the diagnostic uncertainties, that should now be a finding of temporary unfitness.    

1. Both assisting psychiatrists recommended Mr Stephensen be admitted to a secure Mental Health Unit for comprehensive assessment by a forensic psychiatrist, including a full review of Mr Stephenson’s past medical history and to review the issues of psychosis and the possible brain injury; a comprehensive review of Mr Stephensen’s personal history, childhood history and family history and evidence to corroborate this history (such as school records or previous reports); and a full neuropsychiatric assessment and neuroimaging including an MRI.

1. Having considered those reports and the advice of the assisting psychiatrists I am concerned that there are still a number of uncertainties.  It is clear that Mr Stephensen has been considered to be permanently unfit for trial in relation to offences which occurred in 2007 and 2008, essentially on the basis of his intellectual impairment. The level of his impairment is still not certain given that all of the psychometric testing was not able to be completed. There is also a history of brain injury which has not been able to be substantiated despite indications from him that he was hospitalised and in a coma when he was a child. Current assessments after prolonged detention and treatment in the Cairns Authorised Mental Health Service have now cast doubt on whether he could currently be considered to be unfit for trial. He does, however, have behavioural problems and is obviously a very disruptive influence in the Cairns Mental Health Unit.

1. There is, however, no clear consensus of opinion amongst the reporting psychiatrists in relation to the issue of his current fitness. In my view therefore, given the previous findings of permanent unfitness for trial and given the current lack of certainty about whether he is fully fit for trial, Mr Stephensen should, on the balance of probabilities, be considered to still be unfit for trial. However given the lack of completeness in the reports that finding should be one of temporary unfitness.

1. Given the finding of temporary unfitness, s 288(4) of the Act requires that Mr Stephensen be detained in an Authorised Mental Health Service for involuntary treatment or care. I accept the advice of the assisting psychiatrists that he should be placed in a medium secure Mental Health Unit for thorough assessment, rehabilitation and treatment. Given the fact that Mr Stephensen has been charged with 42 offences in the last five years it is appropriate that the true level of his intellectual functioning be thoroughly assessed and that his past history of mental illness and brain injury be thoroughly explored and verified. 

ORDERS:

1.          That at the time of the alleged offences the defendant was not of unsound mind;

2.          That the defendant is not fit for trial and that unfitness is not of a permanent nature; and

3.          That the finalisation of the Forensic Order is adjourned to a date to be fixed.