Demirci Re [2013] QMHC 6

MENTAL HEALTH COURT CITATION: Re Demirci [2013] QMHC 6 PARTIES: REFERENCE BY DIRECTOR OF MENTAL HEALH IN RESPECT OF KENAN DEMIRCI PROCEEDING NO: 0011 of 2013 DELIVERED ON: 20 June 2013 DELIVERED AT: Brisbane HEARING DATE: 14 June 2013 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr J Chalk FINDINGS AND ORDERS: 1. That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence. 2. That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the offence. 3. That a Forensic Order be made detaining the Defendant to The Park High Security Program. 4. That a Limited Community Treatment order to commence immediately is approved on the following conditions: a. That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment; b. That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist; c. That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist; d. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist. -- 1 of 10 -- 2 Escorted (on grounds of the hospital): e. That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; f. For the purposes of escorted limited community treatment, the patient comply with the directions of the nominated staff member/s for the duration of the limited community treatment. 5. That the transcript of these proceedings be released to the parties, the treating team and the Mental Health Review Tribunal. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted murder – where defendant suffered an undiagnosed and untreated psychotic illness, most likely paranoid schizophrenia complicated by an extreme grief reaction and possible emerging major depressive episode – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether a Forensic Order should be made – whether Limited Community Treatment should be approved Criminal Code 1899 (Qld), s 27 Mental Health Act 2000 (Qld), Schedule, ss 257, 267, 288(4), 289 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 Director of Public Prosecutions (Qld) A LYONS J: [1] This is a reference by the Director of Mental Health filed on 18 January 2013. The reference relates to Mr Kenan Demirci. Mr Demirci is charged with attempted murder on 28 April 2012. On 14 June 2013 I gave short reasons for my finding that Mr Demirci was of unsound mind at the time of the alleged offence and indicated that I would give more extensive reasons in due course. These are those reasons. -- 2 of 10 -- 3 [2] It is alleged that Mr Demirci repeatedly struck the 74 year old complainant with the blunt edge and handle of a tomahawk in the Bundaberg Cemetery on 28 April 2012. The complainant sustained three or four heavy blows to his face and head and suffered head and facial wounds as well as soft tissue injuries to his thigh, knee and left rib cage. He suffered a seizure en route to hospital and had to be transferred to the intensive care unit at the Royal Brisbane and Women‟s Hospital and was later transferred to the Princess Alexandra Hospital. He had a large piece of the right skull removed. [3] Mr Demirci is a 53 year old man who was born in Turkey and came to Australia in 1978 at the age of 18. Mr Demirci is divorced and previously had the care of his two disabled sons who were diagnosed with autistic spectrum disorder. The family were well known to Government organisations, particularly Disability Services Queensland. In 2008 the family were approved for recurrent funding through the Family Support Program. In May 2010 however due to Mr Demirci‟s failure to engage with Disability Services after the family‟s relocation to Ayr, the support package was rescinded. Whilst both his sons exhibited severely challenging behaviours, Mr Demirci was devoted to caring for them. [4] There were concerns in 2008 and 2009 in relation to Mr Demirci‟s behaviour and he made serious threats of violence to a Family Support Program coordinator in Ayr. In 2009, Mr Demirci disclosed paranoid and delusional thoughts that a particular facilitator was trying to take his sons away from him. There were further incidents in late 2009 with Mr Demirci alleging that the Department was also trying to take his sons away from him. There were concerns that Mr Demirci had an underlying mental health condition that made it difficult for him to seek support and communicate effectively and which predisposed him to respond to difficult situations with avoidant behaviours, verbal threats and physical aggression. [5] On 17 March 2011, an assessment by a mental health nurse indicated that Mr Demirci did not have a major mental illness and his file was closed by the Mental Health Service. Mr Demirci was referred back to the services provided by Disability Services. [6] On 8 February 2012, Mr Demirci‟s eldest son Turan, who was then aged 21, was found dead at home. When police attended, Mr Demirci described longstanding conflict with his neighbours who had complained about the behaviour of both of Mr Demirci‟s sons. Mr Demirci expressed his belief to police that someone had poisoned his son. The alleged offence the subject of this reference occurred on 28 April 2012 and there is clear evidence of deterioration in Mr Demirci‟s mental state in the intervening period. [7] A Disability Services file note dated 22 March 2012 indicates that since the unexpected passing of Turan Demirci, case managers had observed a progression of conversations with Mr Demirci that started with reference to his son‟s passing away but then progressed to conversations about his beliefs that his son was not revived by police and ambulance officers. The discussions escalated further and disclosed that Mr Demirci believed his son was killed. The file note further indicates that on 19 March 2012 Mr Demirci discussed with a Disability Support worker his belief that the neighbours in his street killed his son and that he was going to take out revenge on those who killed his son. When further questions were asked however there was no evidence he had an actual plan to harm the neighbours, nor was there -- 3 of 10 -- 4 any evidence of weapons. The case managers discussed those issues with Mr Demirci pointing out to him that if he carried out his plan of revenge then he would not be able to care for his remaining son. [8] Arrangements were made for an assessment of his remaining son‟s support needs. Professor O‟Brien and a member of the mental health outreach team were scheduled to assess Ayhan Demirci‟s needs on 26 April 2012. A support worker attended on Mr Demirci prior to the visit and when he arrived Mr Demirci appeared dishevelled, unshaven and agitated. He was also aggressive to his son. The support worked indicated that Mr Demirci looked angry and was physically shaking. He said “You killed my son, you and Louise, you both killed my boy.” The worker indicated that Mr Demirci then went into a verbal rage and he made gestures as if he was cutting his own throat. The support worker was concerned as Mr Demirci‟s behaviour was escalating. Mr Demirci stated, “Someone is going to be killed, those fucking people up the road, those fucking people in Brisbane, you, you fucking bastard even Louise it‟s all her fucking fault bringing these people from Brisbane…”. [9] Before the worker left, Mr Demirci said, “You go before I kill you, I don‟t want to kill you, but someone has to pay. Someone will be killed. I tell you I don‟t care what happens.” The scheduled visit by the mental health team and Professor O'Brien was then cancelled, and the incident was reported. A referral was made for Mr Demirci to be assessed by the Mental Health Service. On 28 April 2012 however, while Mr Demirci was visiting his son‟s grave, he seriously assaulted the complainant who was a retired cemetery worker known to Mr Demirci. The complainant indicated that before he was struck Mr Demirci said to him, “You killed my son” and blamed him for his son‟s death. [10] After his arrest, Mr Demirci was assessed by Dr West at the Bundaberg Watch House who made a formulation of: “complex persecutory delusional beliefs around a conspiracy to remove his children or have him relocate to Brisbane to be in a relationship he didn‟t want to be in, delusional beliefs around neighbours and DSQ/other organisations somehow being involved in the death of his son.” Dr West recommended further diagnostic clarification. [11] On 15 June 2012, Dr Andrew Aboud assessed Mr Demirci in the Maryborough Correctional Centre as “tearful and emotionally labile with paranoid and persecutory though content”. On 20 July 2012, Mr Demirci was admitted to the High Secure Inpatient Service. The psychiatrists’ reports [12] The Court has the benefit of a number of reports and, in particular, the reports of Dr Russ Scott and Dr Pamela van de Hoef. The Court also has the benefit of the advice of the assisting psychiatrists. [13] Dr Scott in his report dated 15 January 2013 indicated that during the interview, Mr Demirci recounted how he and his family had been harassed by his neighbours and how the complainant had harassed him earlier in the day by going to the cemetery -- 4 of 10 -- 5 when he was visiting his son‟s grave. Mr Demirci also indicated to Dr Scott that the victim had made a rude gesture and been disrespectful to him. [14] Dr Scott reports that on 7 August 2012, Mr Demirci disclosed an extensive persecutory system involving the victim, neighbours, the police, the church, Disability Services Queensland and disabled children. He noted that Mr Demirci disclaimed any mental illness and insisted he did not need to be in hospital. He also noted that he showed no concern or remorse for the victim of his attack. Dr Scott stated that Mr Demirci considered that the charge of attempted murder was an attempt to blackmail him. His mental state continued to decline and he was irritable and resisted changes to his medication. Dr Scott does not consider there is any dispute of facts. Whilst Mr Demirci has denied he intended to kill his victim, there is no doubt his assault on his victim was serious and sustained and Mr Demirci‟s own account at the time was an intention to kill. [15] Dr Scott concluded that at the relevant time, Mr Demirci had an untreated psychotic illness which was either paranoid schizophrenia or a delusional disorder – persecutory type. He considers that Mr Demirci‟s mental illness had features of a dysphoric mood, persecutory delusions and grossly impaired judgment. Dr Scott indicated that the differential diagnoses of an organic disorder with psychotic features or a mood disorder with psychotic features were less likely. He considered that the intensity of Mr Demirci‟s persecutory delusions has only marginally improved and it is likely that his delusions developed at least as long ago as 2007. [16] Dr Scott concluded that although Mr Demirci understood what he was doing and had control of what he was doing, he was deprived of the capacity to know he ought not do the act due to his mental illness. In the context of his untreated psychotic illness, Dr Scott considered that Mr Demirci was experiencing longstanding paranoid delusions when he attacked the complainant as he believed he was one of a number of people who had harassed and persecuted him and who were implicated in the sudden death by poisoning of his son less than three months earlier. Dr Scott concluded that in his grossly psychotic state, Mr Demirci was unable to reason or think rationally of the reasons why it was wrong to attack his victim. Dr Scott considered that at the time of his report, Mr Demirci did not have capacity to meaningfully participate in his own defence. [17] Dr van de Hoef has also provided a report dated 30 April 2013. Dr van de Hoef concluded that at least from 2007, and possibly earlier, Mr Demirci was becoming more and more psychotic. She considered that the main features of his illness were unreasonable irritability, suspiciousness that became paranoid delusions, possible auditory hallucinations, and delusions of reference of people taunting him, rocking his roof, following him and trying to dupe him into relationships. Dr van de Hoef stated that most of his delusional beliefs seemed to be tied to fears of losing his son, to medication or to institutions out of his control. Dr van de Hoef considered that at the time of his arrest and for months after his admission to High Secure, Mr Demirci was psychotic. She considered that the death of his son was a tipping point in the sense that it exacerbated a major mental illness that was already there. Dr van de Hoef considered Mr Demirci was grossly impaired at the time of the offence and possibly had been for some time prior. She noted that he had residual psychotic symptoms until at least April 2013. She considered that Mr Demirci also experiences some post traumatic symptoms arising from the discovery of his dead son on the lounge room floor. -- 5 of 10 -- 6 [18] Accordingly, Dr van de Hoef considered that at the time of the alleged offences, Mr Demirci suffered from a chronic undiagnosed and untreated psychotic illness, probably paranoid schizophrenia, which had been complicated for some seven weeks by at least an extreme grief reaction and possibly an emergent major depressive episode following the death of his son. She indicated he was disorganised, sleep deprived, not eating, scruffy and dishevelled. He was visiting the grave of his son twice daily, hugging the gravestone and talking to it and preparing meals for his son as though he was still alive. She considered he was also agonisingly preoccupied with a number of delusionally persecutory beliefs about the poisoning of his son and the need for someone to pay or atone for that. [19] Dr van de Hoef considered any dispute arises as a result of his mental illness and that Mr Demirci‟s delusional beliefs clearly drove the offences. She considered his psychotic disorder was a disease of the mind as defined by s 27 of the Criminal Code 1899 (Qld) and was severe enough to deprive him of the capacity to know he ought not do the act. In terms of future management, Dr van de Hoef considered Mr Demirci would benefit from ongoing treatment with psychotic medication and monitoring of his mood and mental state. She indicated that whilst his mental health has improved since his arrest, he remains only partially insightful and compliance is an ongoing issue. She considered he should be made subject to a Forensic Order and be a Special Notification Forensic Patient given the extreme seriousness of the offence. [20] Dr Angela Voita has provided an update report dated 12 June 2013. Dr Voita has been Mr Demirci‟s treating psychiatrist at The Park since March 2013. She indicated that his mental state has changed little in the last three months and that there has been no improvement in his mental state. Dr Voita indicated Mr Demirci continues to retain delusional beliefs pertaining to the persecution he believes has been perpetrated against him by the victim of the alleged offence and others that he believes are involved in the conspiracy. Dr Voita stated that Mr Demirci still feels justified in his actions and that his ongoing preoccupation with his delusional beliefs is more in evidence when he is interviewed with a Turkish interpreter. She stated that this occurred on 5 April and 23 April 2013 and that such reviews will be an ongoing part of his management plan. Dr Voita indicated that during those interviews, Mr Demirci exhibited evidence of some formal thought disorder and that at times his train of thought was difficult to follow and was circumstantial and tangential. Dr Voita indicated that his insight is very poor in spite of efforts to improve his insight and his attendance at an illness psycho education group indicates that he does not accept he suffers from schizophrenia. [21] Dr Voita stated that Mr Demirci still has unrealistic expectations in relation to his rate of progression to discharge. Mr Demirci is not currently accessing any Limited Community Treatment (“LCT”). She indicated that he was previously accessing escorted leave on the grounds for up to one hour twice a week and that occurred in March and there were no adverse incidents. Following his transfer to the Franklin Unit however, LCT was not continued or applied for, given Mr Demirci‟s ongoing psychotic symptoms and his limited insight into his illness which became evident through the interviews with a Turkish interpreter. Dr Voita considered that Mr Demirci was currently fit for trial as he understood the basic workings of a trial. Dr Voita considered that Mr Demirci should be placed on a Forensic Order if he is found of unsound mind and that he should be given LCT limited to escorted leave on the grounds of The Park. -- 6 of 10 -- 7 The advice of the assisting psychiatrists [22] Dr McVie and Dr Chalk advised that I should accept the clear opinions of Dr van de Hoef and Dr Scott that Mr Demirci‟s offences were driven by his psychotic persecutory beliefs and that he was deprived at least of the capacity to know he ought not do the act at the time. In relation to ongoing management, they advised that although Mr Demirci has now had nearly 12 months of treatment in hospital, when he was interviewed with a Turkish interpreter, there was still evidence of formal thought disorder and ongoing preoccupation with his delusional beliefs. They also noted his poor insight and unrealistic expectations in relation to his state of progress towards discharge as well as the fact that the illness has been severe and difficult to treat. It was also noted that Dr Voita was still changing his medication and had recently implemented Clozapine. [23] Dr McVie and Dr Chalk also stated that it was concerning that Mr Demirci‟s psychotic illness was not diagnosed earlier given his obvious symptoms. Dr Chalk stated: “...this 53 year old man, in my view, has quite clearly had a psychotic illness over a number of years. I think it‟s a tragedy that despite evidence nothing occurred – or nothing definitive occurred and, really, it was after the death of his son that this man developed a complicating major depression, but, in my view, it was his underlying psychotic illness that has driven the offences. At the time of this offence I think it‟s fairly clear that this man was of unsound mind and he was deprived of the capacity to know that he ought not to do the act and, in my view, probably, as Dr van de Hoef‟s indicated – deprived of the capacity to control. I note that he‟s now been in high secure for about 12 months and I think the fact that he‟s now on three anti-psychotic medications really reflects the severity of this man‟s condition and its resistance to treatment.”1 [24] The assisting psychiatrists recommended that a Forensic Order was clearly warranted and that it should be to the High Secure Service at The Park with escorted ground leave. The clear advice was that a non contact clause should also be included in any future LCT conditions. Was Mr Demirci of unsound mind at the time of the commission of the alleged offence? [25] Pursuant to s 257 of Mental Health Act 2000 (the “Act”), the question of Mr Demirci‟s mental condition at the time of the commission of the alleged offence has been referred to this Court by the Director of Mental Health. [26] Section 267 of the Act provides that, on the hearing of the reference, the Court must decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed. The term „unsound mind‟ is defined in the Schedule of the Act as follows: 1 T1-18, at ll 34-20. -- 7 of 10 -- 8 “unsound mind means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.” [27] Section 27 of the Criminal Code provides that: “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person‟s actions, or of capacity to know that the person ought not to do the act or make the omission.” [28] The evidence of all the reporting psychiatrists as well as the advice of the assisting psychiatrists is that Mr Demirci was suffering from the effects of an untreated psychotic illness which was either paranoid schizophrenia or a delusional disorder. It is clear that Mr Demirci‟s mental illness was such that he was experiencing persecutory delusions at the time of the offence. [29] Accordingly, I am satisfied that at the time of the alleged offences, Mr Demirci suffered from a chronic and undiagnosed and untreated psychotic illness. This was a severe psychotic illness most likely to be paranoid schizophrenia. I accept that this underlying mental illness had been complicated for some seven weeks by an extreme grief reaction and possibly an emerging major depressive episode. It‟s clear that Mr Demirci was disorganised, not sleeping, not eating, and extremely distressed. I am satisfied that any dispute that arises is a result of Mr Demirci‟s mental illness and I am satisfied that his delusional beliefs were clearly in evidence at the time of the alleged offences. I am satisfied Mr Demirci‟s psychotic disorder was a „disease of the mind‟, as defined by s 27 of the Criminal Code and that he was deprived of the capacity to know he ought not do the act. [30] I am therefore satisfied that Mr Demirci was of unsound mind as defined in the Schedule of the Act at the time of the commission of the alleged offence. Is a Forensic Order required? [31] Section 288(4) of the Act provides the criteria for the making of a Forensic Order. I am satisfied that the criteria have been met in this case given the very serious charge of attempted murder, the protection of the community and Mr Demirci‟s clear treatment needs. [32] Section 289 of the Act then provides that the Court may, under the Forensic Order, approve LCT. Section 289(4) provides that the Court: “must not order or approve Limited Community Treatment unless 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.” [33] In terms of further management, I note in particular the report of Dr Angela Voita, which was dated 12 June 2013. She has been Mr Demirci‟s treating psychiatrist at -- 8 of 10 -- 9 The Park for the last three months. She indicates that his mental state has changed little in the last three months and there has been no improvement in his mental state. Dr Voita indicates Mr Demirci continues to retain delusional beliefs pertaining to persecution and he believes that others are involved in the conspiracy. She reports that Mr Demirci still feels he was justified in his actions. Dr Voita indicated that he still has ongoing preoccupation with these delusional beliefs and that this was more in evidence when he was interviewed with the assistance of a Turkish interpreter. I note the importance of the role of the Turkish interpreter and that future reviews with an interpreter will be part of the ongoing management plan. [34] I am satisfied, therefore, that, given the serious nature of this offence and Mr Demirci‟s ongoing treatment needs, particularly the fact that he has been very slow to improve, a Forensic Order is required. Given Dr Voita‟s report and the advice of the assisting psychiatrists, I am satisfied that Mr Demirci should be detained to The Park High-Secure Program Authorised Mental Health Service. I approved LCT only to the extent that it is escorted on-grounds leave at The Park. I also note that during such leave Mr Demirci is to comply with the requirements of the authorised psychiatrist and he is also to remain under the escort of health service staff members and, for the purposes of the escorted limited treatment on grounds, he is to comply with the directions of staff. [35] I also note that any LCT is subject to the discretion of the authorised psychiatrist and will be progressed on a graduated basis. I note the concerns of the assisting psychiatrists in relation to a non-contact order and it is clear that such a non-contact order should be made in the future having regard to Dr Voita‟s evidence and to the advice of the assisting psychiatrists in relation to the serious nature of this offence and the continuing impact this offence has had on the elderly victim and his family. ORDERS: 1. That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence. 2. That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the offence. 3. That a Forensic Order be made detaining the Defendant to The Park High Security Program. 4. That a Limited Community Treatment order to commence immediately is approved on the following conditions: a. That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment; b. That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist; -- 9 of 10 -- 10 c. That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist; d. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist. Escorted (on grounds of the hospital): e. That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; f. For the purposes of escorted limited community treatment, the patient comply with the directions of the nominated staff member/s for the duration of the limited community treatment. 5. That the transcript of these proceedings be released to the parties, the treating team and the Mental Health Review Tribunal. -- 10 of 10 --