Re Temple

[2011] QMHC 31

MENTAL HEALTH COURT

CITATION:	Re Temple [2011] QMHC 31
PARTIES:	REFERENCE BY THE DIRECTOR OF MENTAL HEALTH AND THE PATIENT’S LEGAL REPRESENTATIVE
PROCEEDING NO:	0236/09
DELIVERED ON:	4 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2011
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr J M Lawrence Dr E N McVie
FINDINGS AND ORDERS:	That in respect of all of the offences the subject of the references the defendant is temporarily unfit for trial; The defendant is detained, pursuant to a forensic order, to the Park High Security Program Authorised Mental Health Service; That correctional services officers take Mr Temple to The Park Authorised Mental Health Service pursuant to s 292 of the Mental Health Act 2000 (Qld)
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental  Health A Lossberg for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld)

ANN LYONS J:

1. There are two references before the Court in relation to Nigel Temple, one from the Director of Mental Health dated 16 September 2009 and one from Mr Temple’s legal representative dated 21 January 2011. He is charged with six indictable offences and nine simple offences all of which occurred in the eighteen month period between 2 March 2009 and 12 August 2010.

1. The reference by Mr Temple’s legal representative relates to one count of common assault and one count of serious assault, both of which occurred on 2 March 2009. The reference by the Director of Mental Health relates to the remaining charges including one count of assault occasioning bodily harm on 28 October 2009, two counts of wilful damage on 6 August 2010 and one count of common assault on 12 August 2010.

1. In relation to the simple offences, Mr Temple is charged with three counts of breaching bail conditions: one on 27 September 2009; one on 29 July 2010; and one on 25 October 2010. He is also charged with three counts of public nuisance in June and July 2010; one count of trespass on 25 October 2010; one count of unauthorised dealing in shop goods in July 2010; and one count of consuming alcohol in a public place on 24 June 2010.

1. Mr Temple was subject to an involuntary treatment order (ITO) at the time all of those offences occurred. The involuntary treatment order was made on 4 April 2008. The clinical report in relation to an involuntary treatment order review dated 14 September 2010 indicated that Mr Temple had a long history of involvement with mental health services in Cairns which dated back to 1999. That report noted that Mr Temple has attracted various mental health diagnoses and there is extensive documented evidence of divergent clinical views in relation to Mr Temple and whether he has (a) a long standing psychotic illness, or (b) whether his errant behaviour relates to his poor cognitive functioning and antisocial traits.

1. At the time the ITO was put in place Mr Temple had a diagnosis of foetal alcohol syndrome, solvent alcohol and drug abuse, a conduct disorder in early childhood which had evolved into an antisocial personality disorder; schizophrenia of the paranoid type; a schizoaffective psychosis; convulsions on a background of a anoxic brain injury from a suicide attempt and multiple traumatic brain injuries resulting in significant cognitive dysfunction.

Factual background to the offences

1. On 23 February 2009 Mr Temple was five days overdue in relation to receiving his medication pursuant to the involuntary treatment order and would not attend the mental health clinic at Lockhart River. He was located by police and eventually received the medication at the clinic. On 2 March 2009 police were again at the clinic in relation to other matters and Mr Temple entered the clinic and verbally threatened the staff and the police. The charge of common assault relates to Mr Temple’s threatening the complainant with violence saying he was going to kill the complainant. He had his fists raised in an aggressive manner and feigned with his body to strike the complainant. The complainant had to seek cover behind a door to avoid being hit. The police were able to intervene and stop the defendant from any further assaults.

1. The serious assault charge also arose out of the incident on 2 March 2009.  In the process of being restrained and placed in handcuffs Mr Temple struggled violently and continually threatened police with violence including threats to stab them and to run star pickets through them as well as threats to bash and kill them. Whilst waiting for medical staff to sedate Mr Temple, Mr Temple assaulted one of the police constables by head butting him to the body. At the time of that incident the constable and another officer were sitting on Mr Temple’s legs in an attempt to restrain him.

1. On 27 September 2009 Mr Temple breached his bail conditions by consuming alcohol. In relation to the breach of bail on 25 October 2009 Mr Temple was required pursuant to his bail conditions to reside at an address at Edmonton and not to depart the residence between 7pm and 7am. However, on 25 October he attempted to gain entrance to the Lyons Street Diversionary Centre in Portsmouth. He was also charged with trespass on this occasion.

1. In relation to the assault occasioning bodily harm on 28 October 2009 Mr Temple was in the exercise yard of the Cairns watch house when he suddenly punched a fellow detainee in the eye.

1. The public nuisance on 4 June 2010 related to Mr Temple’s standing in the middle of a street in Cairns and screaming abusive language at police. Mr Temple disputes that this offence occurred.

1. On 24 June 2010 he was observed to be drinking alcohol in a public place. The unauthorised dealing in shop goods relates to an offence on 27 July 2010 where closed circuit television footage showed Mr Temple leaping the counter at a Night Owl convenience store and stealing a packet of cigarettes.

1. On 29 July 2010 it is alleged Mr Temple approached a man for a cigarette and when the request was refused he threw rocks at him. It is also alleged that he asked for a knife from the owner of a hot dog stand and threatened to stab the man.  Mr Temple disputes this offence and says he wanted to exchange his knife for a hot dog.  It is also alleged that this offence breached his bail conditions.

1. On 30 July 2010 he went to the office of the Public Trustee who manages his money and threatened staff who would not give him his money so he could eat.

1. On 6 August 2010 Mr Temple is charged with 2 counts of wilful damage after he was asked to leave ‘Uncle Fred Moses House’.  He kicked the door in and broke it.

1. On 12 August 2010 Mr Temple got into an argument on a street corner and suddenly kicked a man in the back of his head from behind. The man fell to the ground dazed. Mr Temple told police he kicked the man because the man had told him he wanted to rape his mother. He states that he was drunk at the time.

Medical Reports

1. In a report dated 18 August 2009, Dr Una Stephenson states that Mr Temple has diagnoses of schizoaffective disorder complicated by polysubstance abuse and borderline intellectual functioning.  He also has a DSM-4 Axis three diagnosis of convulsions on a background of possible anoxic brain injury from a possible suicide attempt.

1. Dr Stephenson outlined Mr Temple’s background, that he was born into a seriously dysfunctional family and social environment with drug and alcohol abuse, family violence and very poor and unstable nurturing. He had spent long periods in institutional care, in prison and in psychiatric hospitals. Whilst his psychotic illnesses resolve from time to time his behavioural problems are intractable. In his periods in institutions he often spends long periods of time in seclusion because of the risks he poses to other clients, to himself and also to staff.

1. In relation to the offences at the Mental Health Service on 2 March 2009 Dr Stephenson states that she believes that those actions were the product of Mr Temple’s mental illness as they were the actions of a person with poor social skills, poor judgment and low frustration tolerance. She indicated that he was acting out as he had done many times before. This view however is not supported by the other medical reports.

1. In relation to fitness for trial, Dr Stephenson did not consider he would be able to face a simple court hearing before a magistrate. He would not be able to defend himself very well and she did not consider he would be in any way fit to take part in a full scale jury trial. She considered that a forensic order was required because it would allow some control as to where he lives.

1. In a report dated 1 December 2009, Dr Woolridge indicated that he would support a diagnosis of schizoaffective disorder/polysubstance abuse as well as borderline intellectual functioning and an antisocial personality disorder. Dr Woolridge stated that Mr Temple has multiple severe psycho pathology and that he does have a mental disease, either schizoaffective disorder or schizophrenia. However, he considered that at the time of the writing of the report his mental disease was reasonably well controlled, given he had been in prison for at least eight months and had been receiving regular medication and had not been using substances. He considered that his mental state was probably as good as it could be.

1. Dr Woolridge indicated that whilst Mr Temple’s intellectual functioning had never been formally assessed it would appear to be borderline which equated to an IQ of about 70.

1. Dr Woolridge however considered that whilst Mr Temple’s behaviour may be determined by one or other or by a combination of his different disorders, he did not consider that there was anything in the material that gave him reason to believe in relation to the charges, that the behaviour:

“... was fuelled principally by either his schizoaffective/schizophrenic illness or by his borderline intellectual function. While both of these disorders are likely to severely impair his judgement I doubt they would have deprived him of the relevant capacities, that is the capacity to understand what he was doing, the capacity to control his actions, or the capacity to know he ought not do what he was doing.

I think that personality factors, which do not constitute a mental disease or natural mental infirmity, were the principal determinants of his behaviour.

Thus I would not support a defence of unsoundness of mind.”

1. Dr Woolridge considered that on balance Mr Temple was unfit for trial and that the unfitness was of a permanent nature. He considered that the unfitness was of a permanent nature because of the progression of Mr Temple’s psychotic illness which can lead to cognitive decline, as well as ongoing substance abuse and repeated head banging in his cell. He also noted the brain damage secondary to the almost successful attempts to hang himself in 2006.

1. Dr Melissa Ramsden, who is the treating psychiatrist at the Lotus Glen Prison, in a report dated 26 August 2010 considered that he was fit for trial at that time.  She acknowledged that he is rather simplistic and self-oriented in his thinking. She considers his judgment and insight are poor and he does not feel he has a mental illness that he chooses to blame others for his misfortunes, rather than taking responsibility for his actions. Whilst not undertaking a thorough examination she considered that his thought processes were logical and goal directed and that he reasoned effectively enough. She considered he was able to control his irritability when he was advised that this would lead to further charges and further prison time.

1. Dr Mila Goldner-Vukov, in a report dated 19 October 2010, also supported a finding that Mr Temple is permanently unfit for trial. She considers that he is suffering from organic brain syndrome, which is complicated by his alcohol and cannabis abuse; that he would best function in a facility for intellectually disabled people; and that his treatment in the community is impossible due to his lack of insight and his grossly impaired judgment. She considers he would be best suited to a facility where he has a safe environment and where he is not going to be a danger to others.

1. In a report to the Court dated 27 April 2011 Dr Bruce Kahn, the clinical director of the Northern Area Secure and Forensic Mental Health Service, stated that Mr Temple was currently psychiatrically unstable.  He also stated that there had been a recent spate of violent assaults on correctional officers.  He stated that currently he is “often and easily agitated” and refers to childhood episodes of trauma.  He stated that;

“His affect is labile, irritable, expansive, and often extremely angry. His speech is pressured, tangential, loud and poorly modulated at times. He often mixes English and Aboriginal dialects, making his comments incomprehensible.  He chants and sings at times and will do so for no apparent reason.”

1. Dr Kahn also considered that Mr Temple’s capacity to process matters relating to his criminal defence is grossly impaired and that he is easily and severely agitated.  He could not envisage how Mr Temple could work effectively with counsel towards his defence given his ‘mercurial affect, disorganised thought, and propensity for violence when his needs are not met to his immediate liking.”

1. Dr Kahn considered that at the time of the hearing in the Mental Health Court Mr Temple was “dangerously mentally unwell.”

The evidence of Dr Heffernan

1. Dr Heffernan gave evidence to the Court and prepared an extensive report dated 22 February 2011 in which he set out a thorough history of all of the offences for which Mr Temple is currently charged. He noted that he was facing numerous charges which had occurred over a period of approximately 18 months when he was living in the community. He stated that his recent management in the community had been complicated by challenging behaviours such as aggression, violence, non-adherence to treatment and substance misuse. He also noted the background of a prejudicial childhood, possible intellectual disability, as well as psychotic episodes, self harm, suicide attempts and recurrent violence to others.

1. Dr Heffernan considered that Mr Temple suffers from a cognitive impairment but acknowledged that there is limited testing to support this and his view is based on a history of clinical impressions. He considered there were a number of clinical features consistent with cognitive deficits such as poor impulse control, behavioural abnormalities, cognitive deficits, difficulties in social interactions as well as poor attention and concentration. He considers that his future treatment and management requires further exploration by an intellectual disability psychiatrist, such as is available through Queensland Forensic Disability Service.

1. Dr Heffernan considered that Mr Temple also suffers from a psychotic illness, the nature of which is unclear.  He considered however that it is clear that he has had psychotic symptoms and that the diagnostic possibilities include substance induced psychotic disorder, schizophrenia and schizoaffective disorder. Given the recurrent nature of his psychotic symptoms and the protracted periods of apparent psychosis in the absence of substance abuse, he considered the most appropriate diagnosis is schizophrenia. He also considers he suffers from a severe personality disorder.

1. Dr Heffernan considered:

“Mr Temple’s mental health presentation clearly reflects the complex interaction of cognitive impairment with a probable psychotic illness, substance misuse and markedly prejudicial childhood, with limited social support. There is also a complex interaction of his culture and upbringing in his presentation and in the challenges of meeting his treatment needs of the Mental Health Services.

Mr Temple is currently on an involuntary treatment order and apparently regularly taking antipsychotic medication and under the care of the Prison Mental Health Service. While he did not appear to be actively psychotic on cross section (although I could not confidently exclude this), there can be little doubt that his mental health problems continue in the form of disorganised and aggressive behaviour, impulsivity and difficulties in communication and interaction with others.  It is also possible that he has an elevated mood and that is contributing to his presentation. In any event Mr Temple continues to have significant mental health treatment needs.”

1. Regarding the various charges Dr Heffernan considered that there was a dispute of facts in relation to the public nuisance charge on 4 June 2010 as Mr Temple says he was not present at the time. In relation to the public nuisance charge on 29 July 2010 Mr Temple also disputes the sequence of events. In relation to the common assault on 2 March, Dr Heffernan stated that Mr Temple had indicated that he had smoked cannabis at the time and it is possible that that led to intoxication with cannabis at the time of that assault. In relation to the common assault on 12 August 2010 it would appear that Mr Temple was drunk at the time and admitted to consuming large amounts of alcohol. Accordingly intoxication would have played a part in those offences.

1. In relation to the question of unsoundness of mind Dr Heffernan was unable to find any compelling history with regard to any of the charges that indicated Mr Temple was likely to have been of unsound mind. Whilst he has a major mental disorder and probably a natural mental infirmity, he did not appear to be fully deprived of any of the relevant capacities but rather he considers that Mr Temple’s capacity was impaired.

1. Dr Heffernan considers that Mr Temple’s pattern of aggressive interactions with others appears to be the result of impaired capacities rather than deprivation and “reflect poor social skills, learned behaviours and impulsivity, rather than psychotic illness and deprivation of capacity”.

1. In relation to fitness for trial, Dr Heffernan considered he was unfit for trial. He indicated that Mr Temple was aggressive in his interactions with him and that he would have been assaulted if he were not under a tightly controlled environment with officer escorts. Mr Temple also told Dr Heffernan when he advanced towards him on three occasions that if he were not restrained he would have assaulted him. Dr Heffernan noted that the precipitant for that behaviour was simply the discussion of his charges on two occasions.

1. In relation to all of the charges, Dr Heffernan considered that the history he obtained was superficial and he was unable to have a detailed discussion with Mr Temple about his charges and was unable to maintain a discussion with Mr Temple about the charges because he could not maintain the thread of the discussion. Dr Heffernan considered that he did not understand the ongoing nature of the court processes and he did not know that he had a lawyer.

1. Dr Heffernan did not consider he was capable of giving any reasoned instructions to his legal representatives and he did not seem to have thought through in any detail the question of guilt. Dr Heffernan considered it was possible that if he received adequate psychiatric treatment and support his symptoms would improve and he might become fit.  Accordingly he considered that he was temporarily unfit for trial. However, he considered that it was also possible that he was permanently unfit as a result of his natural mental infirmity. He considered however that before this conclusion was reached a further period of assessment was required. In particular he considered that there needed to be a clarification of his diagnosis and an analysis of his treatment and medication regime given the numerous changes which had occurred. 

1. Dr Heffernan also stated that there needed to be some further exploration of his cognitive function.  Dr Heffernan noted that Mr Temple was experiencing significant trauma and that this needed to be looked at and managed.  He also considered that further testing needed to occur in relation to his intellectual disability which took into account his educational and cultural background. Dr Heffernan considered that a forensic order was required if he was found unfit as he required inpatient care. He considered that there were two potentially appropriate inpatient settings: one was the High Secure Inpatient Unit at The Park, and the other was the Forensic Disability Unit when it was opened. Dr Heffernan stated that there was a possibility that if his psychotic symptoms responded to treatment it might be the case that his behavioural problems, which arose as a result of his intellectual disability, continue as the more significant long term problem.

1. Dr Heffernan noted Mr Temple’s deterioration since the time he had seen him on February 2011.  He considered that Mr Temple needed treatment and assessment in a hospital setting.

Dispute of facts and intoxication

1. I note that Mr Temple disputes the facts in relation to the 2 public nuisance offences which occurred on 4 June 2010 and 29 July 2010.  Accordingly those charges must continue according to law.

1. In relation to the remaining 13 charges it is clear that in relation to the offences on 2 March 2009 Mr Temple indicated to Dr Heffernan that he had been smoking cannabis and that this therefore contributed to his mental state at that time. He also indicated that he had been drinking at the time of the assault on 12 August 2010 and was ‘drunk’ at the time.  Accordingly I note that issues of intoxication arise in relation to those offences.

Was Mr Temple of unsound mind at the time of the commission of the alleged offences?

1. Counsel for Mr Temple conceded that the consensus of medical opinion did not support a finding of unsoundness of mind at the time of the commission of these offences.  This conclusion was supported by Counsel for the Director of Mental Health and Counsel for the Director of Public Prosecutions.  The assisting psychiatrists similarly indicated that despite Mr Temple’s complex presentation the evidence did not support a finding of unsoundness of mind at the time of the commission of the offences.

1. Essentially I agree with Dr Heffernan’s conclusion that Mr Temple’s pattern of aggressive interactions with others appears to be the result of impaired capacities rather than deprivation and that they reflect poor social skills, learned behaviours and impulsivity, rather than psychotic illness and a relevant deprivation of capacity.

1. I am accordingly satisfied that Mr Temple was not of unsound mind at the time of the commission of the alleged offences.

1. The proceedings against the defendant should continue according to law.

Fitness for trial

1. It would seem clear that on the basis of the Reports of Dr Heffernan and Dr Woodridge as well as the report provided on the day of the hearing by Dr Kahn that Mr Temple is currently unfit for trial.  Whilst it may well be the case that Mr Temple is actually permanently unfit for trial further investigations need to be completed. The advice of the assisting psychiatrists was that Mr Temple was currently unfit for trial.

1. I consider that Mr Temple is currently temporarily unfit for trial.

Forensic order

1. Mr Temple has been found temporarily unfit for trial.  The provisions of s 288 (4) of the Mental; Health Act 2000 (Qld) (the Act) require that the Court must make an order that Mr temple be detained in a stated authorised mental health service for involuntary treatment or care.

1. Dr Heffernan stated that the appropriate environment to pursue the required treatment and care for Mr Temple was The Park High Secure Mental Health Service. 

1. I note the Memorandum from Dr Scott to the Director of Mental Health dated 26 April 2011 which outlined operational difficulties and concerns in relation to The Park’s ability currently to manage Mr Temple. 

1. The consensus of advice however is clear.  That advice is that The Park is currently the appropriate service to manage Mr Temple.

1. There will therefore be an order that Mr Temple be detained at The Park High Security program Authorised Mental Health Service.

1. To facilitate Mr Temple’s transfer to The Park pursuant to s 292 of the Act I order that correctional services officers take Mr Temple to The Park Authorised Mental Health Service and that pursuant to s 292 (2) the correctional officers may exercise the power under subsection s 292 (1) with the help and using the force, that is reasonable in the circumstances.