Barnes, Re [2014] QMHC 6

MENTAL HEALTH COURT CITATION: Re Barnes [2014] QMHC 6 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF JODIE ANNE MARIE BARNES FILE NO/S: 87 of 2013 DELIVERED ON: 25 August 2014 DELIVERED AT: Brisbane HEARING DATE: 16 July 2014 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr J Lawrence Dr J J Sundin ORDERS: 1. Leave to withdraw the reference is refused. 2. I shall hear the Parties as to the further steps to be taken in the determination of the reference. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the legal representatives for the defendant made a reference in respect of the defendant’s mental condition at the time she allegedly committed an offence of assault occasioning bodily harm whilst armed– where the defendant seeks to withdraw the reference – where the Director of Public Prosecutions opposes the withdrawal of the reference – where the reporting psychiatrist opined the defendant was of unsound mind at the time the offence took place and is temporary unfit for trial – where the assisting psychiatrists both opine the defendant is a risk to the community – whether withdrawing the reference is contrary to the interests of justice – whether leave to withdraw the reference should be granted Mental Health Act 2000 (Qld), s 261, s 263(2) COUNSEL: J Briggs for the defendant J Tate for the Director of Mental Health S Vasta 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) [1] BODDICE J: On 2 April 2013 the legal representatives for Jodie Anne Marie Barnes referred to this Court her mental condition at the time of an offence of assault occasioning bodily harm whilst armed, alleged to have been committed on 7 March 2012. -- 1 of 6 -- 2 [2] The Defendant seeks leave to withdraw that reference. Leave is opposed by the Director of Public Prosecutions. At issue is whether it is contrary to the interests of justice to allow a withdrawal of the reference. Background [3] The Defendant was born on 17 May 1973. She has a significant history of substance abuse. She also has a longstanding mental illness. She was diagnosed with schizoaffective disorder in 2003, having previously been diagnosed with bipolar disorder in 1997. She has been treated with anti-psychotic medication since 1996. [4] The Defendant has been hospitalised in the past as a consequence of her mental illnesses. In 2005, the Defendant was hospitalised as an involuntary patient following complaints that people around her were “paedophiles”. She was noted to have delusional beliefs. The Defendant was commenced on medication but absconded from the mental health unit. She was readmitted but again absconded and hitchhiked to Brisbane. [5] Whilst in Brisbane, the Defendant was admitted to the high dependency unit on an involuntary treatment order. She was eleven to thirteen weeks pregnant at the time of that admission. She presented in an elevated state, with pressured speech, tangential thinking and a complex delusional system. She was diagnosed with hypomania with psychotic features. Her mental state settled quickly with medication and her involuntary treatment order was revoked on discharge. [6] In October 2005, the Defendant was again placed under an involuntary treatment order and admitted to an inpatient unit. She had come to the attention of authorities after concern as to her care for her nine week old daughter. Medical staff on the paediatric ward had observed her to behave strangely, having unusual ideas about the baby. She was diagnosed with postpartum psychosis. On discharge, she was follow up by the outpatient mental health service. She was continued on medication pursuant to an involuntary treatment order. [7] Thereafter the Defendant’s mental state remained relatively stable until May 2007 when she described depressive symptoms and a relapse of psychotic symptoms. Her medication was increased and her mental state settled over time. She was noted to be well engaged with her treating team and to have developed good insight into the need for medication. [8] On 28 January 2008, the Defendant self-presented to Robina Hospital with a deterioration in her mental state over a few weeks and onset of suicidal ideation. She was placed on an involuntary treatment order. She was subsequently noted as being compliant with medication with no mood symptoms and no suicidal ideation and only occasional auditory hallucinations. [9] It appears the Defendant lost contact with her mental health team in March 2008. At that time she again reported being pregnant. In September 2012, the Defendant -- 2 of 6 -- 3 was assessed for suitability for a course of hepatitis C treatment. At that time, concerns were expressed as to her ability to cope with treatment from a psychological perception. She had apparently previously been assessed in 2010, where again reservations had been expressed about her ability to psychologically cope with any treatment. Alleged offences [10] The complainant, who was known to the Defendant, was allegedly approached by the Defendant who had earlier exchanged rude signals. Without exchanging any words, the Defendant is alleged to have grabbed a heavy wooden club from her vehicle and started hitting the complainant. The blows were deflected by crutches the complainant was using as she had broken bones in her foot. The Defendant then grabbed the crutches and threw them to the ground. When the complainant fell to the ground, the Defendant continued striking her about her feet and legs. The Defendant left the scene when another person intervened. [11] Some days later, the Defendant was interviewed by police. She admitted striking the complainant on the head with the wooden club. The Defendant stated she must have blacked out as she could not recall exactly where she struck the complainant. She also said the complainant must have struck her with her crutches as she had a bruise on her right cheek. The Defendant said she was angry and blamed the complainant because she associated with people who the Defendant believed had been stalking her, including cutting holes in her walls. The Defendant stated she suffered from a schizoaffective disorder, and was currently on medication. She could not recall if she had taken her medication that day. Reporting psychiatrists [12] Examinations of the Defendant were arranged with Dr Kovacevic and Dr Phillips. Dr Kovacevic opined the Defendant most probably suffered from a major psychiatric disorder, namely schizophrenia or schizoaffective disorder. This illness seemed to be characterised by delusions of harassment and persecution as well as passivity phenomena. The delusional beliefs appeared to be directly related to the episode of her alleged offending. At the time of the alleged incident the Defendant harboured delusions the complainant was “channelling” and mentally manipulating her and taking away her powers. It was in response to these delusional beliefs the Defendant committed the alleged offence. [13] Dr Kovacevic opined that as a consequence of these delusions, the Defendant was deprived of the capacity to appreciate that what she was doing was wrong. Whilst the Defendant disputed some of the facts of the allegations, that dispute of fact was directly related to her mental disorder. Dr Kovacevic also opined the Defendant was temporarily unfit for trial. -- 3 of 6 -- 4 [14] Dr Phillips was asked to undertake a forensic psychiatric assessment pursuant to a court examination order but was unable to complete the assessment due to the Defendant’s failure to attend at designated appointments. Submissions [15] The Defendant submits the purpose and principles of the Mental Health Act 2000 (Qld) (“the Act”) enshrine a patient’s right to decide his or her treatment. Until the treatment becomes a need, the right to decide about receiving treatment should prevail over any community interest in the treatment. There is no basis upon which this Court could conclude her illness is such that ongoing treatment is a need. The Defendant has recently had an involuntary treatment order revoked. [16] The Defendant further submits the alleged event occurred over two years ago, the only reporting psychiatrist’s report is itself over two years old, and there is no suggestion the Defendant has reoffended since that time. There is no basis to conclude that without the imposition of a forensic order there would be an unacceptable risk to the Defendant or members of the public. Accordingly, it is not unjust to allow leave to withdraw the reference. [17] The Director of Public Prosecutions submits the alleged offence is serious, and occurred when the Defendant was of unsound mind. Whilst a patient has a right to decide whether they want to avail themselves of a defence to a criminal charge, it is not in the interests of justice to allow a withdrawal of a reference where the evidence supports a finding of unsound mind, due to the existence of delusional beliefs consequent upon a serious mental illness. Assisting psychiatrists [18] Dr Varghese advises the Defendant has a serious psychiatric illness which is probably paranoid schizophrenia or a delusional disorder. The degree of persecutory ideation raises significant concerns about safety of the community, particularly in light of the events leading to the alleged offence. It is essential the Defendant receive treatment with a psychiatrist. [19] Dr Harden concurs with Dr Varghese’s concern as to the seriousness of the Defendant’s psychiatric illness. He advises there are grounds to suggest there is a serious mental illness present. Further, there has been a history of poor compliance with the treatment. Against that background, the nature of the alleged assault is particularly concerning. -- 4 of 6 -- 5 Leave to withdraw [20] An application to withdraw a reference may be made at any time before this Court decides the reference.1 This Court has the power to grant or refuse leave to withdraw the reference. Section 263(2) of the Act provides the Court must not refuse the application unless the withdrawal of the reference is contrary to the interests of justice. [21] Whilst Dr Phillips was unable to assess the Defendant, Dr Kovacevic supports a finding of unsoundness of mind at the time of the alleged offence. Such a finding does not mean it would be contrary to the interests of justice to allow a withdrawal of the reference. Generally, a person charged with a criminal offence should be entitled to determine whether to rely on an available defence. [22] However, the fact the Act requires leave to withdraw a reference suggests the interests of justice involve much wider considerations than just the entitlement of a Defendant, who is presently mentally well, to disavow reliance upon an available defence to the alleged offence. [23] The wider interests of justice include the protection of the public in circumstances where an offence has been allegedly committed by a person suffering a mental illness. The seriousness of that mental illness, its potential consequences when the Defendant is unwell, the effectiveness of any treatment and any willingness to undergo treatment, are all relevant factors for the Court to consider in determining whether withdrawal of the reference is contrary to the interests of justice. [24] An involuntary treatment order has recently been revoked, suggesting the Defendant’s current treatment is adequately being met voluntarily. However, the Defendant has a significant past history of disengaging with mental health services, with a consequent deterioration in her mental health necessitating admission as an inpatient and the imposition of involuntary treatment orders. Her past history of deterioration includes significant delusional beliefs. The alleged offence occurred in the context of a delusional system of beliefs. [25] Against that background, the advice of the assisting psychiatrists is significant. Both advise the Defendant has a significant serious mental illness which, if untreated, represents a serious risk to members of the public. The Defendant’s refusal to participate in a forensic psychiatric assessment pursuant to a court examination order suggests an unwillingness to engage in circumstances where she has recently been the subject of an involuntary treatment order. This refusal to comply with the court order raises serious concerns as to her ongoing insight into the need for treatment for her serious mental illness. 1 Mental Health Act 2000 (Qld) s 261. -- 5 of 6 -- 6 [26] Having regard to the wider interest of justice, I am satisfied it would be contrary to the interests of justice to grant the Defendant leave to withdraw the reference. I decline, in the exercise of my discretion, to grant leave to withdraw the reference. [27] I shall hear the Parties as to the further steps to be taken in the determination of the reference. -- 6 of 6 --