Re Tar
[2002] QMHC 7
•29 November 2002
MENTAL HEALTH COURT
CITATION: | Re TAR [2002] QMHC 007 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF TAR |
PROCEEDING NO: | 0086/02 |
DELIVERED ON: | 29 November 2002 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 21, 22 October 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr J M Lawrence |
FINDINGS AND ORDERS: | That when the alleged offence was committed, the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000;1. That the defendant be detained as a forensic patient at the Royal Brisbane Hospital for involuntary treatment and care;2. Approval of limited community treatment only after a period of inpatient assessment of at least three weeks and then at the discretion of the treating psychiatrist on the following conditions:3. that the defendant reside at a place in Brisbane approved in advance in writing by the treating psychiatrist;(1) that the defendant comply with the requirements of the treating psychiatrist in relation to the taking of prescribed medication and attendance for outpatient and/or inpatient treatment;(2) that the defendant refrain from using alcohol and illicit drugs;(3) that the defendant co-operate fully in testing for prescribed medication, illicit drugs and alcohol at regular intervals not less than fortnightly and more frequently at the discretion of the treating psychiatrist;(4) that the defendant co-operate fully in random testing for those substances;(5) that the defendant not drive a motor vehicle unless permitted to do so by the treating psychiatrist;(6) that the defendant not leave Queensland, even temporarily, without the prior approval of the Mental Health Review Tribunal; and(7) that such limited community treatment, if implemented, continue at the discretion of the treating psychiatrist, unless it is sooner revoked by the Mental Health Review Tribunal.(8) |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with grievous bodily harm with intent to maim, or alternatively unlawful wounding – whether defendant suffered from unsoundness of mind at the time of the offence – where defendant suffered from schizophrenic psychosis and cannabis intoxication at the time the offence was committed – whether psychosis would have occurred without cannabis intoxication – whether psychosis deprived him of the capacity to know that he ought not do the act – whether a forensic order should be made and limited community treatment should be approved for the period of time until an application for transfer to another state could be heard by the Mental Health Review Tribunal – consideration of factors that need to be taken into account in determining whether a forensic order should be made – where defendant resided in another state and wished to return there – where evidence that defendant was a serious threat to the community Mental Health Act 2000 (Qld), Schedule 2 |
COUNSEL: | B Devereaux for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: TAR ("the defendant") was charged with doing grievous bodily harm with intent to maim or alternatively unlawful wounding on 12 June 2001. The victim was his natural father, whom he attacked with a machete.
The matter of his mental condition at the time of the alleged offences was referred to the Mental Health Tribunal by his legal adviser on 20 December 2001. The reference was heard by the Mental Health Court on 21 and 22 October 2002. At the conclusion of the hearing I found that at the time of the alleged offences he was suffering from unsoundness of mind as described in Schedule 2 to the Mental Health Act 2000, and I made a forensic order and approved limited community treatment.
These are my reasons for so finding and for the orders made.
The defendant was born on 24 October 1980. He suffers from paranoid schizophrenia. For many years he has been a heavy user of cannabis. He has also used amphetamines and drunk alcohol. He had been living in New South Wales until a couple of weeks before the incident, when he moved to Rockhampton to be with his father. In the days leading up to the incident he was clearly psychotic.
I am satisfied that the psychosis deprived him of the capacity to know that he ought not to do the act in question.
The real issue in the case was the role of cannabis intoxication. I accept the opinions of Drs Fama and Varghese that the psychotic episode would have occurred without the intoxication, and that the effect of the intoxication was simply to exacerbate the psychosis. This is in contrast to the opinion of Dr Wilson that the deprivation resulted from the combined effect of his paranoid schizophrenic state and cannabis intoxication.
In determining whether to make a forensic order the Court must consider the seriousness of the alleged offences, the defendant's treatment needs and the protection of the community: s 288(3) of the Mental Health Act 2000. It may order or approve limited community treatment subject to the reasonable conditions it considers appropriate: s 289(1). In deciding whether to order or approve limited community treatment, it must have regard to the following –
(a) the patient's mental state and psychiatric history;
(b) the offence leading to the making of the forensic order;
(c) the patient's social circumstances; and
(d) the patient's response to treatment and willingness to continue treatment: see s 289(6).
Forensic orders and provisions for limited community treatment are reviewed by the Mental Health Review Tribunal within fixed time periods: see chapter 6 part 3 of the Act.
At the time of the hearing the defendant resided at Bateman's Bay in New South Wales, and he wished to return there. There was evidence of non-compliance with his prescribed treatment. He had recently been charged with assault in Albury. He had recently been psychotic. He had continued to use cannabis and alcohol. There was clearly a serious risk of another violent episode.
Orders of the Mental Health Court cannot be enforced in New South Wales, and psychiatric support services in Bateman's Bay are limited. Dr Varghese, whose assessment of the defendant was the most recent, said that he would not be prepared to take the clinical risk of looking after him in the community as a voluntary patient, although he would be prepared to treat him in the community if he had the protection of the Mental Health Act - by which I took him to mean if there were an enforceable order for psychiatric treatment.
It was submitted that the Court should make a forensic order and approve limited community treatment intended to last only a few days until an application for transfer to New South Wales could be heard by the Mental Health Review Tribunal. I was not prepared to make an order in those terms. After consulting the assisting psychiatrists, I made a forensic order in the following terms –
That the defendant be detained as a forensic patient at the Royal Brisbane Hospital for involuntary treatment and care.
I approve limited community treatment only after a period of inpatient assessment of at least three weeks and then at the discretion of the treating psychiatrist on the following conditions:
(1) that the defendant reside at a place in Brisbane approved in advance in writing by the treating psychiatrist;
(2) that the defendant comply with the requirements of the treating psychiatrist in relation to the taking of prescribed medication and attendance for outpatient and/or inpatient treatment;
(3) that the defendant refrain from using alcohol and illicit drugs;
(4) that the defendant co-operate fully in testing for prescribed medication, illicit drugs and alcohol at regular intervals not less than fortnightly and more frequently at the discretion of the treating psychiatrist;
(5) that the defendant co-operate fully in random testing for those substances;
(6) that the defendant not drive a motor vehicle unless permitted to do so by the treating psychiatrist;
(7) that the defendant not leave Queensland, even temporarily, without the prior approval of the Mental Health Review Tribunal; and
(8) that such limited community treatment, if implemented, continue at the discretion of the treating psychiatrist, unless it is sooner revoked by the Mental Health Review Tribunal.
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