Re XYZ

[2013] QMHC 5

MENTAL HEALTH COURT

CITATION:

Re XYZ [2013] QMHC 5

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

ATTORNEY GENERAL FOR QUEENSLAND
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by Election

XYZ
Respondent

PROCEEDING NO:

0110 of 2013

DELIVERED ON:

20 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr Varghese

FINDINGS AND ORDERS:

1. The appeal is allowed.

2. The decision of the Mental Health Review Tribunal dated 13 February 2013 is set aside.

3. The Forensic Order dated 24 September 2004 is confirmed.

Limited Community Treatment is approved in accordance with the Mental Health Review Tribunal Decision of 14 May 2012 on the following conditions:4.   

That the patient reside at a place approved in advance in writing by the treating psychiatrist;a.   

The patient must comply with all appointments for follow up and prescribed treatment, including the taking of prescribed medication and undergoing random tests for those medications, as required by the treating psychiatrist;b.   

The patient must not use alcohol to excess or illicit drugs, and must co-operate fully in random medical tests for those substances as required by the treating psychiatrist;c.   

The patient is not to have unsupervised contact with children under 12 years of age;d.   

The limited community treatment is to be implemented subject to the assessment of the treating psychiatrist that it is appropriate having regard to the patient’s mental condition at the time of implementation. e.   

CATCHWORDS:

MENTAL HEALTH – APPEAL AND NEW TRIAL –  APPEAL BY WAY OF REHEARING – where Attorney-General appealed a decision of the Mental Health Review Tribunal revoking a Forensic Order – where inconsistencies emerged between the information provided to the Tribunal and the evidence given during the Mental Health Court proceedings – whether the Tribunal should have been satisfied that the respondent represented an unacceptable risk to the safety of the respondent or others – whether and on what conditions Limited Community Treatment should be approved

Mental Health Act 2000 (Qld), ss 203(6), 204(1), 457

COUNSEL:

B McMillan for the Attorney-General
J Tate for the Director of Mental Health
D Shepherd for the Respondent

SOLICITORS:

Crown Law for the Attorney-General
Crown Law for the Director of Mental Health
Legal Aid Queensland for the Respondent

A LYONS J:

1. This is an appeal by the Attorney General in relation to the decision of the Mental Health Review Tribunal (MHRT) dated 13 February 2013 to revoke the Forensic Order in relation to XYZ. On 11 June 2013, I allowed the appeal and set aside the decision of the MHRT. On that date, I gave short reasons and indicated that I would provide more extensive reasons in due course. These are those reasons.

1. XYZ was placed on a Forensic Order by the Mental Health Court on 24 September 2004 when she was found to be of unsound mind in relation to the murder of her young child. XYZ was detained in The Park Centre for Mental Health. Limited Community Treatment (LCT) was not approved. That Forensic Order has been reviewed at six monthly intervals since that date. LCT was subsequently approved and XYZ was ultimately discharged from The Park Centre for Mental Health in 2007. Since that date, she has resided in the community and has been assisted by a number of organisations. The Forensic Order and LCT conditions were last reviewed by the MHRT on 7 November 2012.

1. The report of Dr Purushothaman dated 1 October 2012 which was prepared for the MHRT hearing recommended the confirmation of the Forensic Order with full LCT. Dr Purushothaman indicated that XYZ had the following diagnoses:

1. Major depressive episode with psychotic features, in remission.

2.Chronic dysthymia.

3.Borderline personality disorder.

4. Narcissistic personality features.

1. Dr Purushothaman indicated that XYZ had been stable for many years. There had been no incidents of violence since the index offence and that she was at low risk of suicide. Dr Purushothaman also indicated that XYZ had insight into her illness and would be able to identify when she was stressed and seek help and support. Dr Purushothaman recommended confirmation of the Forensic Order with full LCT.

1. During the course of the hearing, however, the advocate for XYZ sought the revocation of the Forensic Order. Accordingly, the MHRT adjourned the review and made an Examination Order pursuant to s 457 of the Mental Health Act 2000 (Qld) (the Act).

1. Dr Reddan examined XYZ pursuant to that order and provided a report dated 15 January 2013.

1. On 13 February 2013, the MHRT reviewed the Forensic Order and considered the report of Dr Reddan together with the further report of the treating psychiatrist Dr Purushothaman dated 4 February 2013. Based on those reports and the evidence of the District Forensic Liaison Officer and the team leader from MICAH Support Services, the MHRT determined that the Forensic Order should be revoked. The MHRT noted that the offence occurred in the context of extremely prejudicial circumstances and that several had transpired since the index offence. The MHRT considered that XYZ’s circumstances had changed and that she was now stable and willing to continue treatment. It was noted that she had been on a Forensic Order since September 2004 and had progressed well during that time. The MHRT noted she had engaged with a large number of community support groups, that she wanted to stay well and that she acknowledged that she needed assistance from Mental Health Services and community support groups.

1. The MHRT also considered that XYZ accepted the need for ongoing treatment and medication for the remainder of her life. In the circumstances, the MHRT was satisfied that XYZ did not represent an unacceptable risk to her safety or the safety of others and revoked the Forensic Order. The MHRT was clearly of the view that XYZ was able to recognise her early warning signs and would seek assistance if she became unwell. In particular, the MHRT noted that when she had a relapse in 2011, she noticed that her mental state was deteriorating and sought voluntary admission.

1. The MHRT also noted that XYZ had been compliant with the requirement that she not have unauthorised access to children and that she had assured the MHRT that she would continue to ensure that no contact occurred in the future.

1. On 22 April 2013, the Attorney-General appealed that decision. The Reasons for the Appeal which are set out in the Notice of Appeal indicate that the MHRT erred in finding that the patient did not represent an unacceptable risk to herself or others when it concluded (i) that she would seek help appropriately if she started to feel unwell; (ii) that she would continue to take medication as a voluntary patient and (iii) that the opinions of Dr Reddan and Dr Purushothaman should be accepted that the patient did not present an unacceptable risk to the safety of herself and others.

1. I am concerned in relation to the factual basis upon which the MHRT made its decision. The MHRT’s Reasons indicate that it placed significant reliance on the fact that the patient advised she had stopped taking her medication two years ago but only on the advice of her general practitioner.[1] The Reasons record that XYZ stated she had broken out in a rash and had been diagnosed with Stevens-Johnson Syndrome and that her general practitioner advised her to stop taking the medication to ascertain if the rash would subside.  She informed the MHRT she did not stop taking the medication of her own volition.  I am concerned that this is not consistent with the evidence that was heard before this Court, as will be outlined further below.

   [1]MHRT Statement of Reasons dated 1 March 2013, at p 5.

The medical reports

1. Dr Reddan’s report dated 15 January 2013 indicates that XYZ is residing in the community and has significant support from a number of community organisations. She has resided at the same address since April 2007 and has completed a number of courses. Dr Reddan indicated that XYZ advised that her only psychiatric hospitalisation was in 2011 when she was hospitalised for a week after being prescribed the wrong medication. She stated that she was prescribed Fluoxetine which caused her to become suicidal. Dr Reddan also noted a significant number of medical problems which had arisen in the first half of 2012, in particular that she developed complications during a routine operation and that she had earlier developed Stevens-Johnson Syndrome.

1. Dr Reddan also noted that XYZ has an enlarged heart and is perimenopausal. Dr Reddan indicated there are no significant ongoing psychiatric symptoms and that whilst she uses Quetiapine to manage her anxiety, she does not have a neurovegetative disturbance. She also indicated that XYZ is a self taught artist who is involved in a number of organisations and assists a young family through her involvement with MICAH. Dr Reddan noted that XYZ considered that she did not need a case manager as she manages most things for herself and she lives within her means and has no debts. Dr Reddan noted a hostile relationship with her sister but good rapport with her neighbours. She also noted that XYZ was blaming her general practitioner for the occurrence of the index offence particularly as she was turned away from help on the day before the offence. XYZ alleges that the general practitioner who saw her was negligent.

1. Dr Reddan indicated that XYZ’s physical conditions are under the supervision of her general practitioner and that she regularly attends a Mental Health Clinic and sees Dr Purushothaman. XYZ described to Dr Reddan the difficulties in establishing a therapeutic relationship with the treating team who she considered acted more in terms of meeting the requirements of the legalities of the order than on therapy. Dr Reddan considered that whilst XYZ expressed regret and guilt about her index offence, she did not show any remorse and had a tendency to project blame onto others for her difficulties in life.

1. Dr Reddan considered that XYZ has a diagnosis of a personality disorder not otherwise specified and has manifested significant borderline traits. She indicated she did not significantly disagree with Dr Purushothaman’s indication of narcissistic traits, as the dysfunctional traits which result in a personality disorder are all on a spectrum. Dr Reddan noted that XYZ’s last admission was in 2011 which was a brief admission related to a change of medication and there was no evidence of a psychotic condition. Dr Reddan noted that XYZ has developed significant somatic problems over the years and has significant sleep apnoea, metabolic syndrome and significant cardio vascular disease which are interrelated.

1. Dr Reddan also considered that XYZ was well supported in the community and there was some evidence of maturing of her personality. She noted that XYZ was less angry and that her life was more stable. Dr Reddan stated that there had been no evidence of any offending behaviour since 2002 and no evidence of substance abuse. Dr Reddan indicated that there is no evidence that XYZ represents a specific risk to any particular person and she did not consider there was a necessity for the special notification provisions to apply.

1. Dr Reddan indicated that in her view, XYZ would seek assistance from organisations if she had significant problems and that she was also aware of where she could obtain specialist mental health assistance and that it was highly likely that staff of the organisations she was involved with would also contact Mental Health Services if there was any decline in XYZ’s mental state. Dr Reddan considered that even if there was a decline in her mental state, the likelihood that XYZ would commit a serious offence was low and she did not consider a Forensic Order was really offering anything in terms of XYZ’s treatment or the protection of the community. Dr Reddan concluded:

“The circumstances that pertained at the time [XYZ] killed her [child] are very unlikely to coalesce again and considered risk assessment indicates that there have been substantial changes to reduce any risk. I would recommend that the Forensic Order now be revoked.”[2]

[2]Report of Dr Reddan dated 15 January 2013, at pp 29-30.

1. In his evidence to this Court and in his report dated 4 February 2013, Dr Purushothaman indicated that XYZ was stable for a number of years until she experienced some fluctuations in mood during 2011 which impacted on her suicide risk. His evidence was that she abruptly stopped her antidepressants and reduced her other medication in early 2011 without consultation with the treating team. The reduction was reported by the community pharmacist. Dr Purushothaman noted that XYZ believes this to be a misrepresentation of her actions as she had told her support worker with MICAH of the difficulties she was experiencing with the medication before stopping it and she had every intention of notifying the treating team.

1. XYZ reported to the treating team that she had stopped the medication as she had been experiencing low and anxious mood and suicidal ideation. She stated that the suicidal ideation stopped when she ceased her Fluoxetine. In response to questions from Dr Varghese about the circumstances surrounding the cessation of the medication and the fact that XYZ became suicidal and anxious, Dr Purushothaman gave the following evidence:

“My explanation is that, from what I could see, that she read that product disclosure statement at the time, and then also she had ongoing physical health problems in the form of significant weight gain, and she was smoking a lot and then she – her reaction or her coping of those stressors was not that good and she had some depressive symptoms.”[3]

[3]T1-21 (11 June 2013), at ll 34-38.

1. Dr Lawrence explored with Dr Purushothaman the circumstances surrounding the cessation of XYZ’s medication and her explanation to the MHRT that this had occurred as a result of advice from her general practitioner:

“Just to clarify what you’ve been telling us, was there any support in those contacts with the GP for the belief that was in the MHRT notes that she had been advised to stop her tablets by the GP because of a Stevens-Johnson syndrome?‑‑‑No, I couldn’t find any.  At the time she was [indistinct]…in the community, but at the – I reviewed her – the chart – but I don’t see any documentation saying that the GP contacted us, or we contacted the GP, because I would presume that, if she had Stevens-Johnson syndrome, from the medication, definitely she would have been admitted to the hospital.  I don’t think they would have managed it as an out patient.  And if it was a such a concern we would have definitely called a GP.  But as far as I can see, there was no mention of Stevens-Johnson syndrome in 2011 by the treating team at the time.

So there’s no relationship between the Stevens-Johnson syndrome, which would be a very serious ‑ ‑ ‑ ?‑‑‑Very serious, yes.

‑ ‑ ‑ response to medication, and would warrant that sort of advice from a GP?‑‑‑Yep.

But there’s no evidence to suggest that that was in any way related to the need for the admission in 2011.  Is that correct?‑‑‑Yes, there’s was no evidence.  And even, like, during the admission she didn’t have report of any Stevens-Johnson syndrome at the time.  But she did have a Stevens-Johnson syndrome in 2012 when she was admitted to ICU for one of the antibiotics.  And I can – I have the discharge summary from [Hospital] which indicates that she did have Stevens-Johnson syndrome, and that was one of the complication why – in doing a stay in ICU.

So she did have Stevens-Johnson syndrome, requiring an admission, in 2012?‑‑‑Yeah.  Look, what I think what happened [indistinct] is that she went to the [Hospital] for an elective cholycystectomy to remove her gallbladder.  When she recovering from the anaesthesia, she didn’t recover fully.  She had multiple hypoxic episodes, and then she was admitted to ICU, and she also had some infections, and then she was treated with an antibiotic for that infection, and she developed Stevens-Johnson syndrome for that, and it prolonged her stay in ICU.

But that didn’t interfere with her prescriptions or use of the antidepressant or the antipsychotic that she was on?‑‑‑No, no [indistinct] 2012 was in [Hospital], and it was not due to her antidepressant, it was from an antibiotic.”[4]

[4]T1-17 (11 June 2013), at line 43 to T1-18, at line 31.

1. Dr Purushothaman indicated that XYZ was not recommenced on that medication and was stable for some months before experiencing a return of depressed mood. Dr Purushothaman stated that she was recommenced on Fluoxetine by the Registrar but was very reluctant to do so. She experienced the emergence of anxious mood and suicidal ideation together with ongoing low mood and was admitted to hospital for reassessment. Fluoxetine was again ceased and she was commenced on Duloxetine.

1. Dr Purushothaman noted that XYZ had been living in the community under full LCT conditions and noted her physical setbacks post surgery in February 2012. He also indicated that XYZ had maintained her improvement and had been compliant with all appointments in the last 12 months. He also noted her expressed intention to continue to engage with Mental Health Services after the order is revoked. Dr Purushothaman ultimately concluded that in the last two years, XYZ has not had any significant relapse of depression. Her mental state has been stable even though she has had significant physical health issues.

1. Dr Purushothaman stated that there is no evidence of dynamic risk factors for violence and XYZ is not responsible for the care of any children. He considered the risk of violence was low. Dr Purushothaman noted she resumed taking the Fluoxetine when she experienced the return of depressive symptoms and that she sought the help of the treating team voluntarily.

1. Ultimately, Dr Purushothaman supported the revocation of the Forensic Order. He stated:

“Her index offence can be characterised as a contextual offence. She was suffering major depression superimposed on a grossly traumatised woman with personality vulnerabilities and chronic dysthymia who is struggling alone with the care of her young [child], financial stresses, housing difficulties and her [child’s] educational and social problems contributed to the picture. As she has been very stable in her mental state for several years she has been provided with assistance to improve her coping strategies and is no longer the carer of a dependent, these contextual factors have been well managed.”

1. Dr Purushothaman provided an additional report to the court dated 17 May 2013 which indicated that he had seen XYZ on a number of occasions in 2013. He states that there have been no significant changes and that she remains engaged with the treating team and has coped very well with the physical stressors in her life. Dr Purushothaman indicated that there is no plan to change her treatment in the next six months and she will continue to be monitored in the community. Dr Purushothaman indicated that the treating plan will remain the same irrespective of whether she is on a Forensic Order or not.

The advice of the assisting psychiatrists

1. Dr Lawrence was concerned that XYZ had stopped her Fluoxetine and was off it for five months before the admission in 2011. She was also concerned about XYZ’s explanation as to why she had ceased the medication and the fact that she has given a variety of explanations to different people.  Dr Lawrence stated that her reservations relate to XYZ’s personality disorder which influences her behaviour. Dr Lawrence advised that she has some concerns about XYZ’s personality and the way that has been operating in recent times, in terms of her attitude to some of her medications and her attitude to following and complying with treatment.

1. Dr Lawrence advised that the decision to revoke the Forensic Order is dependent entirely on the presence of the good engagement and compliance of XYZ and a good therapeutic alliance with the current treating team. Whilst Dr Purushothaman has confidence that the engagement would continue and withstand any potential changes in that treating team, Dr Lawrence expressed concern as to how durable the treatment alliance would be and how reliable XYZ’s statements are that she would consult and seek appropriate treatment quickly and that she would not interfere with her own medications and treatment program if she were subjected to external stressors.

1. Dr Lawrence considered that it is possible that XYZ has a recurrent major depressive disorder which has been mostly controlled or contained by the longstanding prescription of an antidepressant and an antipsychotic medication. Dr Lawrence advised that in summary, she is concerned that the MHRT may have been misled by the information they were given and that there were concerning inconsistencies which emerged in that information during the course of evidence before this Court. Accordingly, Dr Lawrence was concerned that in those circumstances the Forensic Order had been revoked. She considered that oversight of XYZ’s treatment and behaviour and circumstances generally should continue for a longer period of time to test the durability of this treatment alliance.

1. Dr Varghese indicated that he did not doubt that the treatment team is correct in their assessment that the principal clinical issue is disorder of personality.  He was concerned however that there is no Axis 1 diagnosis and a view that there has never been an Axis 1 problem.  Dr Varghese advised that a consideration of the longitudinal history going back several years prior to the index offence, indicates not just a personality disorder but presentations to various hospitals’ treatment teams and very significant mood symptoms.  He also noted postnatal depression and that at one stage, ECT was considered.  Dr Varghese advised that in his view, there is a recurrent major depression.

1. Dr Varghese advised:

“What that means is that grafted onto the personality disorder, [XYZ] has had distinct episodes of major depression.  And I’d accept that they may not have been psychotic, but there’s certainly episodes of major depression.  The other thing that stands out in the longitudinal history is that since the index offence, and since her treatment and a forensic order, she has been in remission from the major depression, no doubt as a result of prophylaxis with antidepressants.  Sometime in 2011, I think it is February, she ceases the fluoxetine, and five months later, a few weeks after resumption of fluoxetine, she experiences, by her account, suicidal ideas and anxiety.  It seems to me the most likely explanation is a re-emergence of depression, rather than the fact that the patient has read about fluoxetine bringing about suicidal ideas.

And what that means is that if she were to stop her antidepressants, she will almost certainly have a (sic) episode of major depression at some stage within the next 12/18 months of ceasing, depending on what the natural history is.  Now, does that mean a forensic order should be reimposed?  Not necessarily.  Recurrent major depression is a very common disorder, a very treatable disorder, and as long as she were to bring to attention (sic) of her team that she has a recurrence, then the episode can be treated.  The difficulty is the personality, which will likely affect engagement with some clinical services, and that has been the problem in the past.  There have been multiple providers, non-attendance, non-adherence.

The other thing about personality disorder is that it does – personality disorder of this type colours how major depression will present, and so if there’s an emphasis on personality disorder, the clinicians often don’t see the depth of mood disorder.  It’s all – everything is attributed to personality.  And, finally, if the problem is conceptualised as personality disorder alone, it’s unlikely that the treatment facility will continue to provide services over the long term.  Whatever Dr – the current treatment team have a commitment to her, which I accept, but that may change within a year or two years.  And, given those concerns, I would – you would have to say – I would have to say that if she has a recurrence of depression with the emergence of suicidal thoughts, she is at high risk of suicide, given the fact that she has the ongoing guilt over what happened to – that led to the death of her child.  She will have to be regarded as high risk of self-harming if there was a relapse.”[5]

[5]T1-28 (11 June 2013), at line 30 to T1-29, at line 15.

This Appeal

1. An appeal to this Court is an appeal by way of rehearing and no error needs to be shown in the decision below.  It is clear that this Court examines the material which was before the MHRT together with any material which has been subsequently provided. The Court also acts on the advice of the assisting psychiatrists.

1. The Act provides that this Court may make any decision which the MHRT could have made. The Act requires that the MHRT review a forensic patient's mental condition essentially at six monthly intervals. In coming to a decision, the MHRT and hence this Court must decide whether to confirm or revoke a Forensic Order for a patient.

1. Section 203(6) of the Act provides that in making a decision, the MHRT, and therefore this Court when hearing appeals, must have regard to XYZ’s mental state and psychiatric history, each offence leading up to her becoming a forensic patient, her social circumstances as well as her response to treatment and willingness to continue the treatment.

1. Section 204(1) provides that the MHRT, and hence this Court, must not revoke the Forensic Order or approved LCT unless satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the mental illness of the patient.

1. In relation to the advice I have been given by Dr Varghese and Dr Lawrence, I have very real concerns in relation to whether XYZ does represent an unacceptable risk to her own safety into the future.  In particular, I have regard to the fact that Dr Varghese advises that he is concerned by the contention that there is no Axis I diagnosis and that there never has been.  Dr Varghese notes the significant mood symptoms in the history.  In his view, there is a real issue as to whether there is an ongoing major depression which Dr Varghese advises arises from the longitudinal history. Those diagnostic issues need to be clarified.

1. Dr Varghese has also advised that XYZ has been in remission due to the antidepressant medication.  He notes that XYZ ceased Fluoxetine in 2011 and that five months later she expressed suicidal ideation.  Dr Varghese’s advice was that, given her history, the most likely explanation is the re-emergence of her underlying illness.  His very real concern is that if she stops antidepressant medication she will have a recurrence.  As Dr Varghese correctly pointed out, the real issue is whether a Forensic Order is still required given that background.  More specifically, will XYZ bring the recurrence to the attention of her treating team and will she get the help that she needs?

1. The MHRT decision was based on evidence that XYZ had ceased her medication in 2011 as she had developed Stevens-Johnson Syndrome and was advised by her general practitioner to cease the medication. The evidence before the MHRT was that she had not ceased the medication on her own accord. That is not consistent with the evidence given by Dr Purushothaman. The evidence is that XYZ developed that syndrome in 2012 in response to antibiotics. I note that she told Dr Purushothaman that she ceased the medication because she experienced suicidal ideation and she told Dr Reddan that she was hospitalised in 2011 due to a bad reaction to medication. I am therefore concerned about this aspect of the evidence. 

1. Given the circumstances surrounding the recurrence of her depressive illness in 2011 and the history that she gave both her team and the MHRT, I have very real concerns about whether, if she has a recurrence in the future, this will be brought to the attention of the treating team given her personality disorder.  It is clear that there had been a history prior to the offence in 2002 of multiple practitioners and disengagement.  Dr Varghese’s very real concern is that if there is a personality disorder alone, then the treating team will not be able to longitudinally engage with XYZ, given that, on their assessment, there is no Axis I diagnosis but, rather, a personality disorder.

1. As I have been advised by both Dr Varghese and Dr Lawrence, there is a very real concern about diagnosis here.  If there is a recurrence of the depression, then Dr Varghese’s very clear advice is that XYZ is at high risk of suicide, particularly given her ongoing guilt.  In all of the circumstances, given that advice, XYZ’s prior history and the misinformation that was before the MHRT in relation to the recurrence in 2011, I consider that the Forensic Order should not be revoked at this point in time. I agree with the advice of the assisting psychiatrists that further investigations in relation to diagnosis need to be made. Accordingly, I am not satisfied that XYZ does not represent an unacceptable risk to her own safety, having regard to her mental illness at this point in time.

ORDERS:

1.          The Appeal is allowed.

2.          The decision of the Mental Health Review Tribunal dated 13 February 2013 is set aside.

3.          The Forensic Order dated 24 September 2004 is confirmed.

4.          Limited Community Treatment is approved in accordance with the Mental Health Review Tribunal Decision of 14 May 2012 on the following conditions:

a.          That the patient reside at a place approved in advance in writing by the treating psychiatrist;

b.          The patient must comply with all appointments for follow up and prescribed treatment, including the taking of prescribed medication and undergoing random tests for those medications, as required by the treating psychiatrist;

c.          The patient must not use alcohol to excess or illicit drugs, and must co-operate fully in random medical tests for those substances as required by the treating psychiatrist;

d.          The patient is not to have unsupervised contact with children under 12 years of age;

e.          The limited community treatment is to be implemented subject to the assessment of the treating psychiatrist that it is appropriate having regard to the patient’s mental condition at the time of implementation.