Re WL

[2009] QMHC 16

MENTAL HEALTH COURT

CITATION:

Re WL [2009] QMHC 16

PARTIES:

APPEAL FROM MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY-GENERAL
Appellant

WL
Respondent

DEPARTMENT OF MENTAL HEALTH
Respondent by Election

PROCEEDING NO:

No 0200 of 2009

DELIVERED ON:

10 September 2009

DELIVERED AT:

Brisbane

HEARING DATES:

10 September 2009

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr E N McVie

FINDINGS AND ORDERS

That the order of the Mental Health Review Tribunal to revoke the forensic order is confirmed;  1.   

The appeal is dismissed.2.   

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where Attorney-General seeks to appeal decision and Forensic Order of the Mental Health Review Tribunal –  whether appeal should be allowed or the MHRT decision be confirmed.

COUNSEL:

Mr S Crofton for the Defendant
Mr J Tate for the Director of Mental Health
Fisher for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is an appeal by the Attorney-General of the decision by the Mental Health Review Tribunal on 20 July 2009 to revoke the forensic order.  The Tribunal revoked the forensic order which had been made by the Mental Health Court on 25 July 2008.

1. The Attorney-General appealed that decision of the Tribunal on the following grounds.  Essentially, there was a well-documented history of failing to adhere to treatment.  Dr Varghese, in his report in June 2008, had documented the longitudinal history of non-adherence and a forensic order would, therefore, allow long term treatment.  The notice of appeal indicated there had only been 12 months since the forensic order was made and there was therefore insufficient demonstration of commitment to compliance.

1. The notice stated that doctors Varghese and Tran in the reports to the Tribunal accepted that when the respondent was unwell he posed a risk to the safety of others.  The treating doctor in the January report to the MHRT also stated the forensic order should continue and that if the respondent became unwell his disorganised behaviour and symptoms would cause trouble with the police.

1. The notice of appeal also stated that a forensic order was required to monitor drug compliance. The essential argument in the notice of appeal was that there was inadequate material before the Tribunal to satisfy the criteria set out in the Act and that it was not appropriate for the Tribunal to revoke the forensic order.

1. Turning to the decision of the Tribunal.  It is clear there was information obtained from the treating team at that hearing.  In the statement of reasons the Tribunal set out the information it had obtained and upon which it based its decision.  The Tribunal indicated there was a diagnosis of schizo-affective disorder first diagnosed as a psychotic illness in 2000.  The offence of assault occasioning bodily harm occurred in February 2008 in the context of a dispute with security guards.  The respondent had settled well on medication and was discharged after a short time.

1. The information before the Tribunal was that since discharge the respondent had remained well and had been abstinent from substances and fully compliant with treatment.  He had also displayed good insight into his illness.  The Tribunal decision recorded that Dr Tran had told the Tribunal the respondent was doing well, was symptom free and working in an occupation for more than 40 hours a week.  Dr Tran also indicated the respondent was managed on a minimal maintenance dose of oral medication.

1. In relation to the risk issues Dr Tran had indicated to the Tribunal the respondent’s risk profile was very low with no history of any prior offences of violence and no indication of any anti-social tendencies.  Dr Tran also told the Tribunal the respondent had a good understanding of his illness, the need for treatment and how to seek assistance if there were early warning signs emerged.

1. Dr Tran indicated there had been no suggestion of illicit drug use, minimal alcohol use and a sound 16 month history of full compliance with his treatment and with the requests of the treatment team.  Dr Tran indicated that it was her view that the forensic order should be revoked and she indicated to the Tribunal that there was no longer an unacceptable risk offered by the respondent.

1. This was supported by the forensic liaison officer who at the Tribunal stated there were no issues of either behaviour or compliance related to the management of the respondent.  In coming to the decision it did, the Tribunal clearly acted on the basis of that evidence.

1. In oral evidence to the Court today Dr Tran has indicated the respondent’s last assessment by her was some two weeks ago.  The respondent was well.  There were no symptoms and, in fact, the respondent had asked for a script for his medication.  Dr Tran indicated that the respondent’s insight has remained good.  He is aware of the early warning signs and of the factors that contribute to his illness.

1. Dr Tran indicated the current strategy was to maintain his wellness and his level of functioning both of which were being monitored.  She indicated he was doing very well and has made great efforts with his family.

1. When taken specifically to the Attorney-General’s grounds of appeal, Dr Tran indicated that there was no evidence currently that the respondent had failed to adhere to his treatment and that he had always maintained contact with the service.  In relation to the report in June 2008 by Dr Varghese, Dr Tran indicated that that report was prepared some 12 months ago, that Dr Varghese’s current view was that the respondent does not need a forensic order and that, in fact, it is documented in the hospital notes that he had considered seeking a revocation of the forensic order.

1. In relation to the fact that it was only 12 months since the forensic order was made, Dr Tran indicated that the respondent has responded well to treatment and that historically he regains a proper level of functioning quickly.  She considered that currently he is a low level of risk to himself and others, particularly given his good support network and his very supportive family.

1. She stated in evidence to the Court that the urine drug screens have all been clear.  Furthermore, the respondent is tested for Lithium.  She is also satisfied he is taking his Elanzopine as he has complained of the tiredness and the other side-effect of sedation which are recognised as side-effects of that medication.

1. She considers that his relapse historically has been due to non-compliance with medication and use of drugs but that the treating team is alert to relapse and considers that the respondent has gained further insight into the issues of relapse.

1. Dr Tran specifically stated she did not consider a forensic order added anything to the compliance.  Dr Tran considered that whilst there was a risk the respondent could drop out of treatment, she does not consider that it is necessary for a forensic order to be made.

1. Dr Tran considered, in fact, a forensic order may be deleterious, that the respondent was very remorseful about the assault and that his insight had improved.  It is clear that it is the unanimous view of the treating team that the forensic order should be revoked.  The Treatment Review Committee also recommended the revocation of the forensic order.  The assisting psychiatrists today have also supported the revocation of the forensic order.

1. On the basis of that evidence, that is the evidence that was before the Mental Review Tribunal, and the evidence before the Court today, I consider that the Tribunal had ample evidence to make the decision it did to revoke the forensic order pursuant to s 203(1) and s 204 and, indeed, it did consider the matters pursuant to s 203(6).

1. I consider on the basis of the evidence before the Tribunal and the evidence before the Court that there is evidence upon which to make the order.  It is clear that the central issue is risk and whilst even if there is non-compliance there is, indeed, no evidence that there would be a risk to the community even with non-compliance.

1. The circumstances of the offence were unique.  There is no history of violence.  There have been no incidents or aggression in recent times and, indeed, no other incidents of aggression or violence in the respondent’s history.  The respondent is currently 45.  He has had six previous admissions over a 10 year period. 

1. I consider that the order of the Court should be that the order of the Mental Health Review Tribunal to revoke the forensic order is confirmed.  The appeal is, therefore, dismissed.