Re TNF

[2011] QMHC 12

MENTAL HEALTH COURT

CITATION:

Re TNF  [2011] QMHC 12

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

PROCEEDING NO:

 0179/11

DELIVERED ON:

30 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2011

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

1.    The decision of the Mental Health Review Tribunal dated 17 May 2011 is confirmed

2.    The appeal is dismissed 

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where the Attorney-General appeals a decision of the Mental Health Review Tribunal made on 17 May 2011 confirming a forensic order and limited community treatment in respect of the respondent which allows unescorted off ground leave– where the Attorney-General appeals on the basis that the extension of limited community treatment was made In the absence of a period of successful supervised leave without event – whether the appeal should be allowed

COUNSEL:

B McMillan for the Attorney General
J Tate for the Director of Mental Health
J Briggs for the respondent

SOLICITORS:

Crown law for the Attorney General
Crown Law for the Director of Mental Health
Legal Aid Queensland for the respondent Crown Law for the

ANN LYONS J:

1. This is an appeal by the Attorney-General against the decision of the Mental Health Review Tribunal (MHRT) made on 17 May 2011. The MHRT confirmed the Forensic Order made on 16 June 2010. That Forensic Order required that the respondent [TNF] be detained as a forensic patient at The Park High Security Program Authorised Mental Health Service and approved limited community treatment confined to escorted leave on the grounds of the hospital at the discretion of the authorised psychiatrist.

1. On 27 May 2011 the MHRT approved limited community treatment which allowed the respondent unescorted off grounds leave for the purposes of structured and planned rehabilitation activities.

1. In the Notice of Appeal filed on 6 July 2011 the grounds of appeal are set out as follows:

“In the absence of a period of successful supervised leave without event, the Tribunal could not be satisfied the patient did not present an unacceptable risk in the event that unescorted, unsupervised leave was granted.
It is therefore considered the Tribunal erred in deleting the condition that the patient must be supervised by a responsible adult when accessing unescorted daytime absences.”

1. The respondent was charged with the attempted murder of his wife on 2 June 2009 and with one count of acts intended to cause grievous bodily harm and one count of deprivation of liberty. In relation to the charges of attempted murder and acts intended to cause grievous bodily harm the respondent was found of unsound mind. In relation to the charge of deprivation of liberty there was a finding that there was a reasonable doubt as to the commission of the offence within s 268 of the Mental Health Act 2000 (Qld) (the Act) and those proceedings were continuing according to law.

1. The circumstances surrounding the attempted murder were that the respondent assaulted his wife with a baseball bat after he indicated to her that “I’ve had enough of this and being poisoned” and “I’m sick of being poisoned”. He demanded that she tell him the truth about her poisoning him and accused her of having an affair. He then inflicted serious injuries with the baseball bat.

1. The respondent’s decline in health commenced in 2000 when he experienced work-related injuries and later in 2003 when he was unable to continue working. In June 2006 the respondent presented to his GP complaining of his wife’s infidelity and concerned that his daughters may not belong to him. He was treated with an antidepressant and referred to a psychologist. He again presented in 2007 complaining of further depression and irritability. He was prescribed Sertraline. In May 2009 the respondent again presented to his GP complaining that his wife had been poisoning him for months. He requested blood tests. He also asked that his wife undergo a lie detector test about her affairs. He also believed that his kava group were talking about his wife and he was also concerned that the group was poisoning him and he therefore stopped attending.

1. The respondent’s wife’s evidence was that the respondent exhibited particularly bizarre behaviour leading up to the day of her assault and had complained that she was stealing his music and had padlocked his side of the wardrobe.

1. All of the reporting psychiatrists indicated that the respondent, at the time of the attempted murder charge and the acts intended to cause grievous bodily harm charge, was suffering from a psychotic disorder which was undiagnosed and untreated. There were differing views as to the exact diagnosis but the differing views did not affect the conclusion that the respondent was of unsound mind but did impact on the issue of future management.

1. At the Mental Health Court hearing Dr Varghese advised the Court that there was no doubt that the respondent was delusional but that the question of diagnosis was of some importance in that it had implications for treatment and also for risk management. He considered that looking at the totality of the evidence the appropriate diagnosis was probably paranoid schizophrenia with morbid jealousy as a predominant symptom, rather than pure morbid jealousy as the delusions involved more than mere jealousy and there was an increasingly bizarre element in some of the delusions with respect to poison.

1. The Court was satisfied that the respondent was, as a result of his mental illness, deprived of both the capacity to know that he ought not do the acts in question and the capacity for control. In terms of whether a forensic order was required, Justice Philippides in her decision made on 16 June 2010, stated:

“[39]     Bearing in mind the nature of the charged offences and that the defendant’s wife sustained very extensive and serious injuries as a result of the defendant’s conduct, and also the defendant’s need for closely monitored and ongoing psychiatric care and the need to protect the community, a forensic order is clearly warranted. Both assisting psychiatrists noted that the grave long term risks are such that very careful regard will be required in the future in respect of issues of limited community treatment. At this stage, the only limited community treatment appropriate is escorted ground leave in accordance with the submission from the Director of Mental Health.”

1. The Mental Health Review Tribunal initially reviewed the forensic order on 26 November 2010 and confirmed the forensic order and approved limited community treatment. The limited community treatment was to be progressed on a stage graduated basis at the discretion of the treating psychiatrist and allowed:

“a)Escorted absences from the authorised mental health service limited to the grounds of The Park

b)Escorted absences from the authorised mental health service

c)Unescorted daytime absences from the authorised mental health service limited to the grounds of The Park

d)Unescorted daytime absences from the authorised mental health service”

On escorted absences, condition 2 required the respondent be accompanied by a health service staff member.

Condition 3 required that the duration and frequency of the unescorted daytime absences in 1d) was not to exceed 4 hours on any occasions and may increase to 8 hours for planned and structured rehabilitation activities.

Condition 4 required that on unescorted daytime absences he was to be accompanied by a responsible adult approved by the treating psychiatrist excluding his wife.

1. The limited community treatment approved by the Tribunal on 27 May 2011 allowed limited community treatment in accordance with conditions 1(a) to (d) as set out above but removed the requirement that on unescorted off ground leave he be supervised by a responsible adult. However Condition 3 required that the duration of daytime absences in 1d) was “as is required for planned and structured rehabilitation activities” and condition 1d) also indicated that the unescorted daytime absences could be on 4 occasions per week.

1. The reasons of the MHRT dated 1 July 2011 set out that at the time of the hearing the respondent was progressing well and that things were very promising for his rehabilitation. The Tribunal indicated that the respondent has accepted his diagnosis and the need for treatment and that he has strong social support in his family and church. The Tribunal stated that the respondent was positive about his future,

“in that he hopes to return to his wife but also to equip himself with skills to allow him to improve his houses These are very protective factors. As against that, he has a significant probably life-long illness which when untreated makes him very dangerous to his wife with whom he again has an ongoing supportive relationship. The treating team propose a slow and gradual reintegration into the community to allow them to observe whether any symtomotology develops as Fahina passes through various transition steps on his return, and whether there is any risk posed to the victim in particular, or others in general, that Fahina may have been paranoid about.

The support network of Fahina has many strengths but it must also be recognised that they are of a different cultural background and have an emotional investment in the patient returning to live with them. These were considerations addressed by the treating team in their limited community treatment plan. The treating team plan an active social and occupational rehabilitation program and suggest that Fahina did not need supervision off the grounds of a hospital. The Tribunal accepted that the proposals by the treating team were appropriate to the genuine progress made by Fahina, nevertheless it recognised that these were still early times in his treatment and given the severity of the index offences caution should be exercised in his return to the community.”

1. Whilst the Tribunal therefore approved escorted and unescorted absences on and off the grounds the Tribunal made it clear that the unescorted off ground absences were for planned and structured rehabilitation activities.

1. It is clear that the Tribunal turned its mind to the issue as to whether the respondent needed to be supervised and indicated that having considered the issues raised by the treating team in relation to supervision:

“The Tribunal was satisfied that Fahina’s advance in treatment and insight to his illness was at such a level that his attendance at planned and structured rehabilitation activities did not require supervision by a responsible adult and could be appropriately advanced across the next review period.”

1. Accordingly the real contention in this appeal appears to be in relation to the unescorted daytime absences on 4 occasions per week. It was stated that the duration of unescorted daytime absences was “as required for planned and structured rehabilitation activities”.

1. An updated report has been prepared by Dr Morris dated 3 August 2011 In his report Dr Morris indicated that he was puzzled by the grounds of the appeal which stipulated that in the absence of a period of successful supervised leave without event the Tribunal could not be satisfied that the patient did not present an unacceptable risk. Dr Morris stated that that conclusion is disputed because the respondent has had escorted limited community treatment available to him since 16 June 2010 for unspecified periods, all of which were utilised without incident. Dr Morris also noted that that condition was expanded to unescorted leave on 26 November 2010 for up to 8 hours with a responsible adult and that was again utilised without incident.

1. Dr Morris provided further evidence at the hearing. He stated that the respondent has slowly and successfully utilised his expanded limited community treatment without incident to support his rehabilitation, cultural and spiritual needs. Dr Morris stated that the respondent now accesses unescorted off ground limited community treatment between one to four times a week for structured and planned rehabilitation purposes without incident.  He stated that his progression remains considered and highly monitored to minimise any possible risks that may eventuate. His risk is considered and managed appropriately by his treating team and it is felt likely to be only raised if he became psychotic again and that steps are firmly in place to manage that.

1. Dr Morris gave evidence that on 21 June the respondent had his first unescorted or unsupervised leave off grounds for four hours for the purposes of attending woodworking. After a month of monitoring his progress on 24 July he was then allowed to attend Church on a Sunday without supervision.  On 12 August that period of unsupervised leave was then increased to allow him to attend the Jacaranda Club for activities. He is therefore currently accessing unsupervised off ground leave on 3 occasions per week.  Dr Morris stated that the leave had been introduced gradually and only after his progress at each stage had been monitored. Accordingly, Dr Morris disputes the reasons for the appeal and says they are incorrect and invalid as the respondent has achieved a period of successful leave both unescorted and escorted without event.

1. It is clear that an appeal to this Court from a decision of the MHRT is an appeal by way of rehearing and the Court is to consider the evidence that was before the Tribunal as well as any additional material.  Having considered the material I am satisfied that the Tribunal did have sufficient evidence upon which it could be satisfied that the respondent should be allowed unescorted and unsupervised leave off the grounds for the purpose of planned rehabilitation activities.

1. I am also satisfied that there is currently evidence to support limited community treatment in that form. Accordingly, the decision of the Mental Health Review Tribunal should be confirmed and the appeal should be dismissed.