Re Wong

[2013] QMHC 14

MENTAL HEALTH COURT

CITATION:

Re Wong [2013] QMHC 14

PARTIES:

REFERENCE BY DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF KEVIN ROBERT WONG

PROCEEDING:

No 287 of 2012

DELIVERED ON:

6 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2013

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr J J Sundin

FINDINGS AND ORDER:

At the time of each of the alleged offences, the subject of the amended reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;1.   

The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting each of the alleged offences the subject of the amended reference;2.   

The defendant be detained, pursuant to a forensic order, to the Princess Alexandra Hospital Authorised Mental Health Service;3.   

Limited community treatment be approved, at the discretion of the authorised psychiatrist, on conditions 1, 2, 4, 5, and 6 in the draft forensic order proffered by the Director of Mental Health;4.   

Copies of the reports and of the transcript be provided to the parties, the treating team, and to the Mental Health Review Tribunal.5.   

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is a medical practitioner charged with multiple offences of indecent assault – where the defendant suffers from a longstanding psychiatric illness – where the defendant ceased taking antipsychotic medication before the alleged offending – where those patients who had previously seen the defendant described no prior problems with his behaviour, examination or treatment – where the reporting psychiatrists opine the defendant’s mental illness deprived him of the capacity to know he ought not to do the acts constituting each of the alleged offences – whether the defendant was suffering from unsoundness of mind at the time of any of the alleged offences

Attorney General (Qld) v Bosanquet & Ors[2012] QCA 367, followed
R v Porter (1933) 55 CLR 182; [1933] HCA 1, cited
Re SAM (2003) QMHC 003, cited
Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, cited
Re W (unreported, Mental Health Review Tribunal, Dowsett J, 14 October 1997), cited

COUNSEL:

P J Davis QC for the defendant
J Tate for the Director of Mental Health

B J Campbell for the Director of Public Prosecutions (Qld)

SOLICITORS:

K & L Gates for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Queensland)

BODDICE J:

1. By an amended Notice of Reference, filed 6 March 2013, the legal representatives for Kevin Robert Wong referred to this Court his mental condition at the time of the alleged commission of multiple offences of indecent assault between 8 July 2012 and 21 August 2012.

1. The issue for determination is whether the defendant was suffering from unsoundness of mind at the time of any of the alleged offences.  It is not in dispute the defendant is otherwise fit for trial.

Background

1. The defendant was born on 20 December 1960.  He is a medical practitioner by occupation.  All but one of the alleged victims were patients.  The remaining alleged victim was his receptionist.  At the time of the alleged offences, the defendant was working in a medical practice at Wynnum in the State of Queensland.  The defendant immediately ceased work after being charged with the alleged offences.

1. At the time of the alleged offences, the defendant’s registration was not subject to any conditions.  However, it had previously been subject to conditions following a severe psychiatric episode in 1998.  As a consequence of that psychiatric episode, the defendant had been admitted to the Belmont Hospital.  He was given a differential diagnosis of schizophrenia or psychotic depression.  He was noted to have a well developed set of delusions around religious and acupuncture themes.  They probably developed as early as 1993.

1. The defendant’s psychiatric condition improved following treatment with antipsychotic and antidepressant medications.  He was discharged from hospital but subject to ongoing psychiatric review.  There were occasions when the defendant’s psychiatric condition later relapsed as a result of non-compliance with medication.  Those relapses were short-lived once he resumed his antipsychotic and antidepressant medication.

1. Approximately four years before the alleged offences the defendant ceased regular contact with his psychiatrist.  By that stage, the conditions on his registration had been removed by the Medical Board of Queensland.  The defendant continued, for a time, taking a low dose of medication for his condition.  However, in late 2011 the defendant decided he did not require that medication, although he continued taking Prozac.

Alleged offences

1. The alleged offences all occurred at the defendant’s medical practice.  All of the alleged victims were female.  They were aged from their teens to their late sixties.  The alleged offences involved conduct that ranged from placing a patient’s hand on the defendant’s groin area, or placing his groin area onto a patient’s legs, to squeezing aspects of the patient’s breasts and caressing or squeezing or rubbing their buttocks.  In the case of the receptionist, it is alleged the defendant pressed his leg into her crutch and leant against her breast. 

1. A number of patients reported the defendant made heavy breathing sounds or grunting noises whilst undertaking these activities.  Many of the patients described the defendant’s behaviour during the consultation as strange or bizarre.  However, a review of the medical records did not reveal any unusual entries, and there was no suggestion the defendant misdiagnosed or inappropriately medicated a patient.

1. Following the last of the alleged offences, the defendant was interviewed by police.  In an extensive interview, over several hours, the defendant largely denied the alleged conduct.  In relation to some of that conduct, the defendant proffered an innocent explanation for his behaviour. 

Reporting psychiatrists

1. Dr Grant examined the defendant on 28 November 2012.  The defendant was well known to him as Dr Grant had been involved in providing reports on various occasions between 1998 and 2003 at the request of the Medical Board of Queensland.  Each of those reports related to the defendant’s fitness to practice medicine, and the need for ongoing conditions.

1. In his report dated 6 December 2012, Dr Grant noted those patients who had been previously seen by the defendant described no prior problems with his behaviour, examination or treatment.  They described being puzzled and distressed by his behaviour at the time of the alleged offences.  Most patients described the defendant’s behaviour as “quite inappropriate and a violation of normal doctor-patient boundaries”.  Some referred to the defendant as appearing absentminded, or preoccupied or “off in his own world”.  Most recorded minimal communication or explanation by the defendant at the time as to his conduct. 

1. Dr Grant also noted the alleged offending behaviour was completely out of character.  The defendant had no history of any similar behaviour in the past, even though his medical practice had previously been disrupted by a psychotic illness.  At that time, whilst the defendant had quite florid delusions on religious and acupuncture themes, there was no suggestion of inappropriate touching of patients.

1. Dr Grant set out, in detail, the defendant’s explanation for the alleged offences.  The defendant thought he was healing the patients and making them better, but was unable to explain why he thought that to be so.  He simply had a fixed idea in his head.  In respect of the receptionist, the defendant expressed doubt the incident had occurred, although he recalled brushing against the woman on one occasion.  In respect of the one occasion he placed a patient’s hands on his groin, the defendant said he thought that was what the patient wanted him to do. 

1. The defendant denied any of his actions produced sexual stimulation in him.  He explained any grunting or murmuring noises during the incidents as due to a chest problem he was experiencing at that time.  The defendant accepted his behaviour was strange.  He recalled having the notion he should not be doing what he was doing but felt obliged to do it because he thought “the patients wanted him to do it”.  He believed he was very unwell.  He accepted he did not have any insight into his condition.

1. The defendant considered he was working at a satisfactory level as a medical practitioner at the time, but noted his memory was very poor.  The defendant described a gradual, steady deterioration in his condition after he ceased taking his medication, although much of that was seen in retrospect.  He experienced a steady deterioration in his sleep, concentration and memory.  He became withdrawn and uncommunicative, producing relationship difficulties with his wife and son.  He described a deteriorating appetite, and significant weight loss.  His mood became “very very very flat”.  He developed paranoid thinking, particularly in relation to his possessions.  He started to spend freely. 

1. Dr Grant noted that after being arrested by police, the defendant recommenced his medication, and contact with his psychiatrist.  His mental and physical conditions improved over time, although his concentration remained poor. 

1. In Dr Grant’s opinion, the defendant suffers from schizoaffective disorder.  That disorder, which began in 1993 but was not diagnosed until 1998, markedly affects the defendant’s thinking and behaviour, although the disorder responds well to a combination of antidepressant and antipsychotic medications.  That mental illness gradually deteriorated following cessation of antipsychotic medications, as a consequence of which the defendant had a relapse of psychotic symptomatology associated with some depression, paranoid thinking and paradoxical over-spending.

1. Dr Grant opined the relapse of the defendant’s schizoaffective psychosis was associated with significant psychotic beliefs, affective disturbance and unusual odd ideas in regard to what he needed to do to help his patients.  That illness had a profound effect upon the defendant’s capacities.  Whilst he was able to continue to practice medicine without any other noticeable problems, the illness significantly affected his concentration, memory and day-to-day activities. 

1. In Dr Grant’s opinion, the relapse in the defendant’s mental illness was of such a significance that it deprived the defendant of the capacity to know he ought not to do the acts in question, and of the capacity to control his actions.  Whilst the defendant retained some knowledge that what he was doing was improper, the defendant was so affected by his illness that he was unable to think about what he was doing with a moderate degree of sense and composure.  He felt compelled to act on his psychotic ideation in regard to how he could best help his patients.

1. In reaching this opinion, Dr Grant acknowledged the defendant’s treating psychiatrist, who had seen the defendant shortly after his arrest, did not describe florid symptoms.  Dr Grant also acknowledged the apparent sexual elements of the defendant’s behaviour had not been exhibited in previous episodes of psychotic illness.  However, Dr Grant considered the defendant’s psychotic beliefs were driving his behaviour such that whilst the behaviour appeared sexually motivated, it was in fact motivated by his illness and his very distorted ideas about how best to help his patient at that time.

1. Dr Grant maintained those opinions in evidence at the hearing.  By that stage, Dr Grant had had the opportunity to view entirely the interview conducted between police and the defendant.  He accepted that in that interview the defendant did not attribute any of his conduct to a therapeutic or healing behaviour.  However, Dr Grant did not consider the failure to disclose the existence of delusional beliefs as to what his patients wanted him to do, indicative of the retention of a capacity to control his actions, or to know he ought not to do the act.  It was very common for people who are very unwell to not reveal their symptoms, particularly where they have developed a lack of insight.

1. Dr Grant did not see any inconsistency in the fact that when the defendant was first diagnosed in 1998, he was significantly more unwell than on the present occasion.  He also did not see any inconsistency in the fact the defendant did not engage in this behaviour with every female patient, and did not engage in that activity with a female patient when a medical student was present.  Dr Grant considered the explanation lay in the fact the defendant was having psychotic symptoms, and psychotic symptoms were not necessarily predictable or going to occur with every patient.

1. Dr Grant accepted there may have been a sexual component to the defendant’s conduct, but considered the defendant’s behaviour odd and quite bizarre, and not typical of a sex offender.  Dr Grant explained that a person with a psychotic illness can function perfectly well in their normal life but underneath have complex delusional beliefs or psychotic symptoms which affect various aspects of that life. 

1. Dr Grant acknowledged an important aspect of his opinion was an acceptance of the defendant’s assertions he undertook this alleged offending conduct as part of a healing process.  However, even if there was an aspect of sexual gratification in the defendant’s conduct, it would not change Dr Grant’s opinion that the defendant was deprived of the requisite capacities at the time of each of the alleged offences.

1. Dr Reddan examined the defendant on 2 July 2013.  She was given a similar history.  Dr Reddan diagnosed the defendant as having suffered a relapse of schizophrenia, which was characterised by emotional and affective blunting, neurovegetative disturbance, bizarre delusions and ego boundary breakdown.  Dr Reddan opined that at the time of each of the alleged offences the defendant was psychotic.  Dr Reddan accepted the offences were in part sexually motivated but opined the sexual feelings and behaviours were driven by psychotic phenomena.

1. In Dr Reddan’s opinion, the defendant’s schizophrenia deprived him of the capacity to know that he ought not to do the acts the subject of each of the alleged offences.  Dr Reddan does not accept his schizophrenia deprived him of the capacity to control his actions.

1. Dr Reddan maintained those opinions in evidence.  Whilst she did not agree with Dr Grant’s assessment that the defendant was suffering a schizoaffective disorder, Dr Reddan did not see any significance in that different diagnosis.  The defendant was psychotic at the time, and out of touch with reality. 

1. Dr Reddan accepted there was a fine distinction between the impairment of a capacity and the total deprivation of that capacity.  Dr Reddan also accepted aspects of the defendant’s behaviour were consistent with his psychosis only severely impairing that capacity, rather than totally depriving it.  However, on balance, Dr Reddan considered there was a total deprivation of the capacity to know that he ought not to do the acts.  The defendant’s offending behaviour was driven by his psychosis, which involved a psychotic belief the patients were communicating with him mentally, and wanted him to undertake the offending conduct. 

1. Dr Reddan noted there was no suggestion the defendant had sought to meet patients elsewhere, or engage with them outside of the consulting room.  Further, the fact the defendant, on occasions, sought to explain his behaviour when challenged by a patient was not inconsistent with the presence of a psychosis.  Even psychotic people will conform their behaviour to social norms on occasions.

Submissions

1. The defendant’s legal representative submitted the Court will find the defendant was suffering from unsoundness of mind at the time of each of the alleged offences.  The alleged offending behaviour arose in the context of a longstanding psychiatric illness, a cessation of the taking of antipsychotic medication, and a gradual deterioration in that longstanding mental illness.  The fact the defendant did not proffer an explanation to police consistent with the existence of delusional beliefs did not mean he was not deprived of the capacity to know he ought not to do the acts.  Aspects of the interview involved strange behaviour, and an inability to retain concentration.

1. The Director of Public Prosecutions submitted the Court will not accept the defendant was suffering from unsoundness of mind at the time of any of the alleged offences.  The factual matrix is inconsistent with such a conclusion.  The defendant was performing adequately in a professional sense, was treating the patients otherwise appropriately, and did not proffer any explanation to police consistent with the existence of a delusional belief system.  Further, when the defendant was examined by his treating psychiatrist, shortly after being charged with the alleged offences, that psychiatrist diagnosed the defendant as suffering from a mild relapse with no evidence of psychosis. 

1. It was further submitted that whilst there may be evidence of a deteriorating mental state at the time of the alleged offences, there must be a link between any psychotic illness, and the deprivation of the capacity to know that he ought not to do the act.  It is insufficient to simply establish the psychosis was driving the offending behaviour.  There is a distinction between a deprivation of capacity, and whether there was any thought given to whether he ought to do the act in question. 

1. In support of this submission, the Director placed particular emphasis on the defendant’s answers in his interview with police.  Those answers largely contain denials, or no explanation for the alleged offending behaviour.  The Director submitted if there was a deprivation of the requisite capacity, it would be expected an explanation consistent with that deprivation would have been provided to police.

1. The Director of Mental Health submitted that in reaching a conclusion on the question of unsoundness of mind, it is relevant to consider the longitudinal history of a longstanding mental illness, with a cessation of antipsychotic medication, and the strange and bizarre behaviour reported by the alleged victims at the time of the alleged offending.

Assisting psychiatrists

1. Dr Sundin advised I ought to accept the opinions expressed by Doctors Reddan and Grant.  Whilst the case is very perplexing, and there is a fine line between substantial impairment and total deprivation, the longitudinal picture and the changes in patterns of cognition function and neurovegetative disturbance in the months leading up to the alleged offences were consistent with the defendant’s actions being driven by his psychotic beliefs as a consequence of the relapse in his schizophrenic illness. 

1. Dr Sundin advised I ought to accept the defendant’s mental illness deprived him of the capacity to know he ought not do each of the acts the subject of the alleged offences.  Dr Sundin advised I ought not to accept the defendant’s mental illness deprived him of the capacity to control his actions.

1. Dr Varghese also advised I ought to accept the opinions of Doctors Grant and Reddan that the defendant was in a psychotic state, with delusional beliefs regarding certain female patients.  Dr Varghese advised I ought to accept the defendant’s mental illness deprived him of the capacity to know he ought not to do the acts the subject of the alleged offences.  Dr Varghese advised I ought not to accept there was a deprivation of any capacity to control his actions.

1. Dr Varghese further advised I ought to accept the defendant has a longstanding serious mental illness which commenced as an affective mood disorder with psychotic depression, was later conceptualised as a schizoaffective disorder, and is now appropriately to be diagnosed as schizophrenia.  Such a history is not uncommon.

1. Against a background of non-adherence to treatment requirements, it was unsurprising such a mental illness would gradually deteriorate such that the defendant would again develop psychotic symptoms.  That psychosis may relate to only some aspects of his life, whilst allowing him to remain functional in many other aspects of his life.

1. Dr Varghese further advised aspects of the police interview did exhibit subtle evidence of schizophrenia.  Whilst weak in themselves, they were enough to support a diagnosis if there was other data consistent with the existence of schizophrenia. 

Applicable principles

1. Whether a person was of “unsound mind” at the time of the commission of alleged criminal offences requires a consideration of whether that person is in such a state of mental disease or natural infirmity as to deprive the person of the capacity to understand what the person was doing, or of the capacity to control the person’s actions, or of the capacity to know the person ought not to do the act or make the omission.

1. The capacity for control concerns volitional control, rather than motor control, over physical acts.[1]  The capacity to know one ought not to do an act relates to the ability to appreciate the wrongness of the particular act at the particular time.  It does not involve a question of right or wrong in the abstract.  This test, enunciated by Dixon J in R v Porter[2] was endorsed in Stapleton v The Queen.[3]  The question is whether there is an inability to “reason about the matter with a moderate degree of sense and composure”.  The “matter” is the “rightness or wrongness of the act in question”.[4]

   [1]Re SAM (2003) QMHC3 at [31]; approved in Attorney General (Qld) v Bosanquet & Ors [2012] QCA 367 at [52] per Philippides J (with whose Reasons Margaret McMurdo P and Gotterson JA agreed).

   [2](1933) 55 CLR 182 at 189-190.

   [3](1952) 86 CLR 358 at 367.

   [4]Re W (unreported, Mental Health Review Tribunal, Dowsett J, 14 October 1997) at 13; adopted in Bosanquet at [66].

Unsoundness of mind

1. There is clear evidence the defendant suffers from a longstanding psychiatric illness.  I accept the proper diagnosis of that illness is schizophrenia.  It is also clear the defendant, through a lack of insight into the need for ongoing treatment, disengaged with his treating psychiatrist and thereafter ceased taking any antipsychotic medication.  I accept that over time, the cessation in taking antipsychotic medication led to a deterioration in the defendant’s mental illness. 

1. I accept the deterioration in the defendant’s mental illness was of such a magnitude that at the time of the alleged offending behaviour he had developed psychotic beliefs.  Whilst the defendant’s ability to otherwise function normally in the treatment of patients, and his apparent ability to not offend against some female patients, may be consistent with the retention of some capacity to know he ought not to do the acts the subject of the offending behaviour, I accept the opinions expressed by Dr Grant and Dr Reddan that the defendant was totally deprived of that capacity at the time of each of the acts the subject of the alleged offences. 

1. I accept the fact the defendant did not exhibit any evidence of psychosis shortly after being charged by police, and did not make reference to the existence of any delusional beliefs when interviewed by police in respect of the alleged offending behaviour, is not inconsistent with the defendant’s alleged offending behaviour occurring as a consequence of a mental illness which deprived him of the capacity to know that he ought not to do the act in question. 

1. It is the rightness or wrongness of the act in question that is in issue. The court must be satisfied that the inability to reason in respect thereof is due to the person’s mental condition.[5]  An examination of the nature of the defendant’s illness, and of his alleged offending behaviour, establishes the necessary nexus required; there has been an actual deprivation of the relevant capacity because of the mental illness.[6] 

   [5]Bosanquet at [66].

   [6]See, generally Re: W (unreported, Mental Health Review Tribunal, Dowsett J, 14 October 1997).

1. The evidence of Dr Reddan, which I accept, satisfies me that the defendant, as a consequence of the development of delusional beliefs in the context of a relapse in his psychotic illness, did the acts the subject of the alleged offences.  There was a clear link between the development of those delusional beliefs, and the acts.  

1. Whilst the reporting psychiatrists used the expression the defendant was driven by those delusional beliefs, it is clear from their evidence the reference to being “driven” was a reference to a cause or connection between the existence of those delusional beliefs and the acts the subject of the offending behaviour. 

1. I also accept the evidence of the reporting psychiatrists that at the time of each of the alleged offences the defendant’s mental illness was of such a magnitude that it deprived him of the capacity to know he ought not to do each act constituting each of the alleged offences.  I accept the defendant was deprived of the ability to reason with a moderate degree of sense and composure as to the wrongness of the act the subject of the offence.  However, I do not accept his mental illness deprived him of the capacity to control his actions.  On this latter aspect, I preferred Dr Reddan’s opinion.

1. These conclusions are consistent with the advice of the assisting psychiatrists.  That advice was particularly helpful in understanding how a person acting on delusional beliefs may otherwise function appropriately in aspects of their life, and not exhibit any signs of those delusional beliefs when interviewed by police and when assessed by their treating psychiatrist.  As Dr Varghese observed:[7]

“Psychotic symptoms are not mechanistic productions of the mind or brain but may represent a psychotic representation of underlying conscious or unconscious drives including sexual drives.  Psychotic symptoms are also contextual and may emerge with respect to certain persons and certain times and certain situations as against others, again, reflecting conscious or unconscious feelings.  For example, it would be not uncommon for a patient to believe that a famous, beautiful actress is sending him signals indicating that she’s in love with him.  I’ve never seen a patient say that the plain lady down the road is doing that to him.  This is again a reflection of unconscious wishes.

A psychotic person may know that certain sexual behaviour is unacceptable or illegal, such that they deny doing the act or hide their act – their impropriety, but nevertheless be driven to certain acts by the strength of psychotic experience.  In other words, the psychotic belief, whether it arises from delusional percept or a sudden delusional idea, that is an idea coming straight into one’s head without any trigger, or thought insertion, reduces the experience of thoughts entering your head, or thought broadcast which is thoughts leaving your head, or auditory hallucinations will override the normal inhibition against certain behaviour and thus the patient would be deprived of capacity even if the desire – even if they derive sexual gratification from the action.”

[7]T1-72/40-73/15.

Future management

1. Whilst Dr Grant initially opined there was no need for a forensic order, he accepted there was a need for a forensic order at the hearing.  Dr Reddan also opined there was a need for a forensic order.  Both assisting psychiatrists advised a forensic order ought to be made in the circumstances.

1. Against a background of a patient who has exhibited little insight into the need for ongoing treatment, and who disengaged with his psychiatrist and subsequently made the decision he no longer needed medication, there is little doubt the protection of the defendant, and others, requires the imposition of a forensic order. 

1. The Director of Mental Health proffered a draft forensic order.  The reporting psychiatrists accepted the terms of that forensic order were appropriate, including the amended conditions with respect to limited community treatment.  The assisting psychiatrists advised the terms of that order were appropriate.  I accept that advice.  I am satisfied it is appropriate to grant the defendant limited community treatment on those amended conditions.

Conclusion

1. The defendant was suffering from unsoundness of mind at the time of each of the alleged offences the subject of the amended reference.

1. I order:

1.          At the time of each of the alleged offences, the subject of the amended reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;

2.          The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting each of the alleged offences the subject of the amended reference;

3.          The defendant be detained, pursuant to a forensic order, to the Princess Alexandra Hospital Authorised Mental Health Service;

4.          Limited community treatment be approved, at the discretion of the authorised psychiatrist, on conditions 1, 2, 4, 5, and 6 in the draft forensic order proffered by the Director of Mental Health;

5.          Copies of the reports and of the transcript be provided to the parties, the treating team, and to the Mental Health Review Tribunal.