Re TLK
[2007] QMHC 10
•16 April 2007
MENTAL HEALTH COURT
CITATION:
Re TLK [2007] QMHC 010
PARTIES:
AN APPEAL BY THE DIRECTOR OF MENTAL HEALTH AGAINST DECISION OF MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING:
Proceeding No 0157 of 2006
DELIVERED ON:
16 April 2007
DELIVERED AT:
Brisbane
HEARING DATE:
16 April 2007
JUDGE:
Philippides J
ASSISTING
PSYCHIATRISTS:Dr J F Wood
Dr J M LawrenceFINDINGS AND ORDER:
1. Appeal allowed
2. The decision of the Mental Health Review Tribunal of 16 May 2006 revoking the forensic orders is set aside and the defendant is to be detained to The Park – Centre for Mental Health Authorised Mental Health Service
3. Limited community treatment is approved on the following conditions:
a. that the patient reside at Basil Stafford Centre Averyon Road Wacol Qld or at an address approved in advance in writing by the authorised psychiatrist;
b. that the patient attend all follow up appointments and in-patient care as required by the authorised psychiatrist;
c. that the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
d. that the patient abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist; and
e. that the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist
CATCHWORDS:
MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where appeal against Mental Health Review Tribunal decision to revoke four forensic orders – where forensic orders related to various charges of assault and wilful damage – where patient is alleged to have engaged in further aggressive conduct and self harm since the revocation of the forensic orders – whether patient represents an unacceptable risk to herself and to others – whether forensic orders should have been revoked – whether limited community treatment should be approved if forensic orders are reinstated
Mental Health Act 2000 (Qld), s 203, s 204
Re A K B [2005] QMHC 005
COUNSEL:
Mr Ryan for the defendant
Mr J Tate for the Director of Mental HealthMr B Isdale for the Attorney-General
SOLICITORS:
Don McMillan Solicitors for the defendant
Crown law for the Director of Mental HealthCrown Law for the Attorney-General
PHILIPPIDES J: This is an appeal brought by the Director of Mental Health against the decision of the Mental Health Review Tribunal of 16 May 2006 revoking four forensic orders.
The first forensic order concerns a detention order made on 23 July 1986. It related to 15 counts of wilful destruction of property, one count of common assault and one count of assault occasioning bodily harm. The property offences charged concerned the breaking of windows of dwelling houses and of motor vehicles. The common assault concerned throwing a stone towards the owner of one of the houses and the assault occasioning bodily harm concerned an attack on a seven year old child at a restaurant, who the appellant allegedly kicked and punched because she was crying. The Mental Health Tribunal made a finding of unsoundness of mind.
Notwithstanding the summation of the proceedings in the reasons of the Mental Health Review Tribunal that on the occasion of the hearing before the Mental Health Tribunal on 23 July 1986, the reporting doctors were of the opinion that there was no lack of capacity, but only a substantial impairment, it appears from the judgment of the Mental Health Tribunal constituted by Justice Vasta that his Honour in fact found that there was an absence of capacity of control.
The second forensic order concerns a detention order made by the Mental Health Tribunal constituted by the present Chief Justice on 13 May 1996, in respect of four counts of assaulting nursing staff on 16 July 1995.
The evidence before the Mental Health Tribunal was that the appellant suffered from a natural mental infirmity, but there was a dispute as to whether there was as a result of that condition or that infirmity a deprivation of the capacity of control. The Tribunal had before it a report dated 13 February 1996 of Dr A who opined that the appellant was not deprived of the capacity to control her actions, but the Tribunal preferred the opinion of other reporting doctors that there was a deprivation of control by virtue of mental retardation.
The third forensic order relates to a detention order made on a finding of unsoundness of mind on 19 May 1997 by Justice Dowsett in respect of a charge of assault occasioning bodily harm, which concerned an allegation of the appellant kicking a nurse when being assisted to a seclusion ward.
The fourth forensic order was made by the Mental Health Court on 29 October 2002 in respect of four counts of wilful damage to property, windows and motor vehicles, one of wilful damage by fire to a mattress in the appellant's room and three counts of serious assault by spitting on police. The Court found that the appellant was not suffering from unsoundness of mind at the relevant times, but that she was permanently unfit for trial. Limited community treatment was approved.
The Mental Health Review Tribunal had before it in determining whether to revoke the four forensic orders, a number of reports, including a report from Dr B and Dr A.
Dr A's evidence was that the appellant had no mental illness and suffered from a borderline intellectual disability with severe personality disorder. He indicated that he was not able to tease out the cause of the appellant's offending behaviour and did not believe that she lacked the capacity to control her actions or any other relevant capacity. He saw her affective instability as part of her personality problem and not as part of a mental illness and did not consider that there was any benefit in the maintenance of any forensic order.
Dr B's evidence was that the severity of the appellant's personality disorder was such as to require antipsychotic medication and might be classified as a mental illness. He saw the appellant's aggressive actions as the function both of her personality disorder and her borderline intellectual impairment. He observed that the introduction of Clozapine had produced a marked reduction in the frequency of assaults.
The Mental Health Review Tribunal in its reasons concluded that:
"In the present circumstances the last forensic order was made on the basis that the patient did not lack capacity in relation to criminal offending but lacked insufficient intellect and understanding to be able to properly defend herself at trial. The finding that a person is not fit for trial is not an assessment of risk or criminal responsibility.
The Tribunal does not have to consider fitness for trial as a criteria for continuation of a forensic order. What it must consider under section 204 is the risk that arises in [the patient’s] case from a natural mental infirmity. The Tribunal was satisfied that [the patient’s] natural mental infirmity was not the cause of the risk of violence but the risk arises from choices she has the intellectual ability to make. In such circumstances consistent with the decision in A K B the Tribunal determines that revocation of the forensic order was appropriate in [the patient’s] case as presently she makes a choice to act inappropriately and knows it is wrong. It may be a different situation for people with differing disabilities.
This complex situation appears to have altered as [the patient] has become older and has been treated with Clozapine and taught some behaviour management techniques to cope with frustration other than responding with violence. Indeed, the fact that she has learnt to go to a place for a cigarette and calm down shows that the risk of violence is a result of factors under her control not mutably fixed by her disability. No doubt there is still a risk of violence but that is not in the Tribunal's view one arising from her disability as opposed to other complex factors affecting the patient."
The grounds of appeal are that the decision of the Mental Health Review Tribunal ought to be set aside. Essentially, it is stated that the Tribunal erred in the application of the decision of Re A K B [2005] QMHC 005. Furthermore, it is said that the Tribunal ought to have found that revocation of the forensic orders would represent an unacceptable risk for the appellant's safety and for others. It was also submitted that in any event the circumstances that have transpired since the making of the decision by the Mental Health Review Tribunal indicate that the revocation of the forensic orders is inappropriate.
Before dealing with those grounds of appeal I should refer to a number of events that have occurred since the decision of the Tribunal. It appears that Open Minds, an organisation involved in a behavioural plan implemented under the order of the Guardianship and Administration Tribunal dated 3 November 2006, have ceased to be involved in the management of the appellant. It appears that as of about a week ago that organisation has withdrawn from the management of the appellant because of various allegations of aggressive conduct by the appellant, including allegations that she threw a rock at an individual and at a motor vehicle over the Easter period that has just passed.
It also appears that as a result of alleged aggressive conduct the appellant was placed at the Banksia Unit at Wacol. It seems that occurred, as I understand it, yesterday. Dr A, who gave evidence today, indicated that that facility is of a nature that approaches a high secure environment.
It is also important to refer to the report of Dr C dated 23 March 2007 and the report signed by Dr D of 11 April 2007 which I understand was compiled in conjunction with Dr A.
The report of Dr C details matters of grave concern. It appears that the appellant has had two hospitalisations at the Princess Alexandra Hospital in November 2006 and December 2006. It seems that the first admission between 6 to 23 November 2006 was triggered by a major Clozapine overdose. The report details various serious acts of self harm by the appellant. It seems that there was a cessation of Clozapine which was associated with a number of incidents of self harm and of aggressive conduct towards others.
Dr C concludes as follows:
"As is clear from above this patient displays very severe behavioural disturbances. Throughout these admissions there was little to support a diagnosis of major mental illness such as psychotic disorder. She did, however, talk of hearing voices on many occasions during these admissions. These were assessed to be consistent with personality disorder. From the handover letters from The Park where [the patient] has been resident for some four years prior before entering our service it is clear that the sort of behaviour we observed during time under our care was consistent with her long term pattern. It would appear that these behaviours would likely continue into the foreseeable future and that the strategies of restraint, seclusion and medication will probably be required in order to hold some hope of containing her behaviour."
Dr D notes that on 2 February 2007 Clozapine was restarted and reports significant clinical benefit from this although he also states: "There has been insufficient time to see its full effect."
I consider that there is merit in Mr Isdale's submission concerning the erroneous application by the Tribunal of Re A K B. It is apparent in this case that unlike the situation in Re A K B, the appellant suffers presently from a mental disability, as Dr A confirmed in his evidence today. There is also evidence of concerning conduct associated with the appellant's mental condition which exposes both the appellant and others to unacceptable risk and in those circumstances I consider that not only did the Tribunal erroneously apply Re A K B but that on a proper consideration of the factors specified in sections 203 and 204 of the Mental Health Act 2000 (Qld) (“the Act”) the Tribunal ought not to have revoked the forensic orders.
The circumstances that have arisen since the Tribunal's decision serve to underscore the conclusion that revocation of the forensic orders was not appropriate. I note that Dr A associated some of the conduct of concern with the cessation of Clozapine. However, I observe that the report of 11 April 2007 signed by Dr D makes the point that, whilst there has been a significant improvement clinically in the appellant's condition, it is still the case that there has been insufficient time to see its full effect.
I also note that there has been, as late as a week ago and it seems also possibly yesterday, conduct by the appellant which indicates that she presents as an unacceptable risk, at least to others, if a forensic order were not imposed. Indeed the appellant’s recent conduct has resulted in her placement in the Banksia Unit and as I understand Dr A's evidence it appears that it is being contemplated that she be placed in an even more secure environment by the erection of a fence around the building housing her. It also seems the case that seclusion is being anticipated as necessary in order to deal with her behavioural difficulties. Indeed, I understood Dr A to accept that these restrictive strategies may be required intermittently on an indefinite basis.
It is therefore envisaged that the appellant needs treatment strategies which involve serious restrictions and limitations on her liberty of a nature which are seen in the context of a forensic order. However, in the present case, if the Tribunal's decision were upheld, these serious infringements would be envisaged as occurring without any of the safeguards available under the Act.
Indeed, it may be that the appellant may on one occasion in the past have been secluded in the high secure unit without any forensic order being in place or any ITO. That, I understand, is the subject of an inquiry by the Director of Mental Health. That simply goes to highlight the difficulties faced in treating the appellant under the currently proposed regime.
In my view, the forensic orders ought not to have been revoked. I order that the decision of the Mental Health Tribunal of 16 May 2006 revoking the four forensic orders be set aside. I make an order that the appellant be detained to The Park – Centre for Mental Health Authorised Mental Health Service.
It is appropriate to approve the limited community treatment to commence immediately on the conditions proposed by the Director. They are that the appellant reside at an address approved in advance in writing by the authorised psychiatrist, that she attend all follow up appointments and in-patient care as required by the authorised psychiatrist, that she comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment, that she abstain from the use of alcohol and drugs and make herself available and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist and that she not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
As I understand it, the approval of limited community treatment will enable the appellant to be appropriately accommodated at least for the immediate future in accommodation which Dr A has indicated is presently suitable for her, although I note that alternate accommodation is being envisaged in some weeks' time.
It is appropriate in the present case that the reasons of the Court and a transcript of the proceedings be provided to the treating team, the Mental Health Review Tribunal, the Adult Guardian, the Public Advocate and DSQ.
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