Re XHB
[2012] QMHC 5
•21 March 2012
MENTAL HEALTH COURT
CITATION:
Re XHB [2012] QMHC 5
PARTIES:
REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF XHB
PROCEEDING:
No 0266 of 2011
DELIVERED ON:
21 March 2012
DELIVERED AT:
Brisbane
HEARING DATE:
15 March 2012
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr E N McVieFINDINGS AND ORDER:
The appeal is allowed. 1.
The decision of the Tribunal is set aside.2.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – Where the Attorney-General for the State of Queensland appeals a decision of the Mental Health Review Tribunal made on 4 August 2011 to revoke a forensic order – where that forensic order was made by the Mental Health Court on 10 February 2009 after the respondent was found to be of unsound mind in respect of a range of offences alleged to have been committed in 2007 – where the respondent wants the forensic order to be discontinued – where the respondent suffers significant intellectual impairment – whether the respondent represents an unacceptable risk to the safety of himself or others – whether the decision of the MHRT should be upheld or set aside
MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – Where the Attorney-General for the State of Queensland appeals a decision of the Mental Health Review Tribunal made on 4 August 2011 to revoke a forensic order – where that forensic order was made by the Mental Health Court on 10 February 2009 after the respondent was found to be of unsound mind in respect of a range of offences alleged to have been committed in 2007 – where the respondent wants the forensic order to be discontinued – whether the decision of the MHRT should be upheld or set aside
Re AK [2002] QMHC 3
Re SGA [2011] QMHC 1
COUNSEL:
M Pollock for the Attorney-General (appellant)
J Briggs for the respondentJ Tate for the Director of Mental Health (respondent by election)
SOLICITORS:
Crown Law for the Attorney-General (appellant)
Legal Aid Queensland for the respondent
Crown Law for the Director of Mental Health (respondent by election)
BODDICE J:
On 4 August 2011, the Mental Health Review Tribunal (“the Tribunal”) revoked a forensic order in respect of the respondent, XHB. The Attorney-General for the State of Queensland appeals that decision on the grounds that it was neither reasonable nor justifiable.
By letter dated 15 March 2012, the Attorney-General particularised the basis for appeal in the following terms:
“(1)As per the reasons stated on the Mental Health Court Form 4 - Notice of Appeal and as submitted at the Mental Health Review Tribunal previously, the patient has made no improvement in terms of insight/compliance and is unlikely to voluntarily comply with medication/treatment requirements. It is acknowledged that the patient has an Axis II rather than an Axis I diagnosis. In this regard it appears unlikely that without parental input and close supervision, the patient would be compliant. It appears that the patient has not been referred to other support agencies that may benefit him due to his father’s input. Clarification from the treating physician is required at hearing.
(2)Secondly, and following on from the above, the sole responsibility for the patient’s care and compliance has been passed to the patient’s father in circumstances where there is no formal guardianship order in place (it is acknowledged that one has apparently been sought and denied). In this regard, the father of the patient maintains that other family members are available to provide the necessary care should he (that is the father) become unable to do so. However it is apparent (from the material) that the patient’s attendance at psychological sessions have been noted in the past to involve brief interaction with the psychologist, and thereafter the father has been left to respond to the psychologist’s questioning. It is submitted that evidence from the current treating doctor needs to attempt to address this point. Furthermore the material suggests as was submitted before the MHRT that:
(1)The patient remains desirous of a move to [an interstate] area which would obviously be at odds with the current parental/familial supervision arrangements in place;
(2)The patient engages at attendances with the treating Doctor in minimal fashion, leaving the patient’s father to respond to questioning.”
Background
The respondent is 35 years old. He suffers significant intellectual impairment. His full scale IQ is 52. There is also evidence of autistic spectrum disorder. As a consequence, he suffered numerous behavioural difficulties.
The respondent was placed on a forensic order by order of this Court dated 10 February 2009. That order followed a finding that the respondent was of unsound mind in respect of offences of burglary, fraud, possession of tainted property, breach of domestic violence order, obstructing police, unlicensed driving and driving with a blood alcohol limit over the general limit, alleged to have been committed between 28 July 2007 and 5 December 2007. At that time, the respondent was living away from his parents. The respondent had no prior criminal history. The forensic order approved limited community treatment.
The respondent has remained on the forensic order since that date. There have been no allegations of offending since those alleged offences. He is cared for by his parents. They have worked tirelessly to ensure he remains incident free.
The Tribunal’s decision
The respondent advised the Tribunal he wished the forensic order to be discontinued, and that he desired to relocate [interstate] away from his parents. The respondent’s treating psychiatrist, Dr Roy, advised the Tribunal the respondent had had a very good response to treatment, and his family provided excellent and stable management of his needs. Dr Roy advised that having regard to his longstanding stability, ongoing management by his GP would appropriately manage the patient’s risk should a forensic order not remain in place.
The Tribunal concluded that having regard to the respondent’s response to treatment, and his willingness to continue treatment, the respondent did not pose an unacceptable risk to himself or to others and could safely live in the community without the need for the formal protections provided by a forensic order.
The Appeal
The appeal is an appeal by way of rehearing. The matter is to be determined by reference to the state of affairs which exists at the time of the rehearing. No error need be shown in the decision of the Tribunal before re-determining the matter: Re AK [2002] QMHC 003 at [12]-[15], Re SGA [2011] QMHC 1 at [75]. Having regard to the provisions of s 204(1)(a) of the Act, this Court could only revoke the forensic order if it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others having regard to the patient’s mental illness or intellectual disability.
Evidence
The Court had the benefit of evidence from the respondent’s present treating psychiatrist, Dr Parkin, together with a report from his previous treating team under the hand of Dr Melissa Ramsden. The Court also received information from the respondent’s father, and, by way of interjections, from the respondent.
Dr Ramsden supported the revocation of the forensic order, as the respondent was fully compliant with his medication, and had not reoffended or exhibited any inappropriate behaviour. Dr Parkin, however, expressed concerns in relation to the non-continuation of the forensic order.
Dr Parkin noted the defendant had mental retardation and mood disorder, and would become irritable when not well. Whilst he was currently compliant with treatment, the respondent had limited insight into both his condition and the need for treatment, and was likely to become non-compliant in the event there was no power to compel treatment. To date, the control exhibited by his parents had been reinforced by the mandatory nature of the forensic order. That power was diminished without a forensic order, or an involuntary treatment order.[1]
[1]T 1-12/50.
As to future risks, Dr Parkin observed the respondent does not believe he needs medication and wanted to stop his medication. In that event, the respondent’s risk factors would increase, particularly if the respondent was out of the family home and in the company of others encouraging him to do other things.[2] There was a significant likelihood he may do something problematic, with the risk of harm to himself or others.
[2]T 1-10/55.
The respondent’s father informed the Court the respondent was obedient and there was no need for any ongoing legal structure.
During the hearing the respondent spoke at various times. He made it clear he did not wish to continue medication, and did not wish to remain living with his parents. He specifically asked when his “probation” would end as he intended to leave the family home and move interstate.[3]
[3]T 1-20/35; T 1-21/35.
Assisting psychiatrists
Dr McVie advised that whilst the respondent’s condition remains stable, and he enjoys a significant support structure, should this structure cease, he would become non-compliant. In that event, there was an unacceptable risk to himself and a risk of further offending and possibly aggression. For that reason, the forensic order should be reinstated.[4]
[4]T 1-25/5.
Dr Lawrence also advised a forensic order was required in the circumstances. She noted the original charges were considerable, and serious. Whilst the respondent has a natural mental infirmity, he also suffers from a mood disorder which needs medication.[5] In Dr Lawrence’s opinion, supervision was essential:
“I believe we had a demonstration during this hearing of the importance of the supervision that [XHB] is getting from his parents and what is likely to happen if that parental supervision was not available to him. I believe that the supervision that the father has been giving and the parents, generally, does require some legal support. It needs to be mandated and, particularly, for instance, that he continue to reside with his parents and under their care and supervision and continue to fulfil other requirements such as his medication and being assessed regularly by a medical and psychiatrist person. I believe that if that is withdrawn, that support, then there is a very real risk to the community of further offending coming about.
I don’t believe that an involuntary treatment order would be sufficient in the circumstances. It would be like shutting the gate after the horse has bolted, I believe, even if it could be invoked.”[6]
[5]T 1-25/25-45.
[6]T 1-25/50 – T 1-26/10.
Discussion
There is no doubt the respondent suffers from a significant natural mental infirmity. I accept that he also suffers from mood disturbance, which requires ongoing medication. These conditions have resulted in the respondent having little insight into the need for ongoing treatment.
Although a revocation of the forensic order was supported in the Tribunal by the respondent’s then treating team, Dr Parkin does not support the removal of mandatory orders. I accept his evidence. I found it considered and measured, giving due recognition to the importance of a mandatory regime in ensuring compliance by the respondent.
Whilst the respondent’s condition is presently stable, and he is fully compliant, this compliance has occurred against a background of fantastic support from his parents whilst he lives in the family home, and an understanding by the respondent that he is subject to the constraints of a court order. The respondent made it perfectly clear that if he is not subject to a mandatory order, he would immediately leave the family home. In that event, he is likely to cease complying with his treatment regime.
I am satisfied revocation of the forensic order renders the respondent an unacceptable risk to himself and others. It allows an environment in which the respondent can be non-compliant with his medication, and can leave the family home. Without medication, there is a significant risk the respondent’s mood would deteriorate, placing both himself and others at risk.
This conclusion that the respondent represents an unacceptable risk to the safety of himself and others without a forensic order is consistent with the advice of the forensic psychiatrists.
Conclusion
The respondent represents an unacceptable risk to the safety of himself or others without the imposition of a forensic order.
The appeal is allowed. The decision of the Tribunal is set aside.
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