Drake, Re [2012] QMHC 29

MENTAL HEALTH COURT CITATION: Re Drake [2012] QMHC 29 PARTIES: REFERENCE BY LEGAL REPRESENTATIVES IN RESPECT OF STEPHEN FRANCIS DRAKE PROCEEDING NO: No 0050 of 2012 DELIVERED ON: Delivered ex tempore on 14 November 2012 DELIVERED AT: Brisbane HEARING DATE: 14 November 2012 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr A S Davison FINDINGS AND ORDERS: 1. That the defendant was of unsound mind at the time of the commission of the alleged offences. 2. A forensic order be made detaining the Defendant to the Gold Coast Network Authorised Mental Health Service. 3. 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. Escorted (on and off 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. -- 1 of 8 -- 2 CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant was charged with nine occasions of making a bomb hoax between 19 June 2010 and 28 October 2010 – where defendant was still on remand for three Commonwealth offences not referrable to the Mental Health Court – where defendant was diagnosed with chronic paranoid schizophrenia and mild mental retardation – where there was conflicting expert psychiatric opinion on whether the defendant was deprived of one of the capacities – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether a Forensic Order required – whether Limited Community Treatment should be approved COUNSEL: S J Hamlyn-Harris for the defendant J Tate for the Director of Mental Health A Lossberg for the Director of Public Prosecutions S Burgess for the Director of Forensic Disability SOLICITORS: Buckland Allen Lawyers for the defendant Crown Law for the Director of Mental Health Office of the Director of Public Prosecutions (Qld) Director of Forensic Disability (Qld) ANN LYONS J: [1] This is a reference by the legal representatives for Stephen Francis Drake filed on 12 March 2012. Mr Drake is charged with a number of offences, including three Commonwealth offences, namely use of a carriage service for a hoax and two counts of improper use of emergency call services. Those Commonwealth offences are not able to be referred to the Mental Health Court. [2] Mr Drake is also charged with nine State offences which are the subject of this reference. He made a bomb hoax on nine occasions between 19 June 2010 and 28 October 2010. Six of those hoax calls were made to St John‟s Anglican Church Surfers Paradise; two were made to court houses; and one was made to the Southport Catholic Church. The five offences which occurred in the week between 19 and 28 June 2010 occurred after a period of almost five months incarceration in Victoria. He was released from prison on 8 June 2010 and the prison records indicated that despite having been placed on Depot medication in January 2010 he was still chronically unwell with psychotic symptoms on release from prison on 8 June 2010. The St Vincent‟s Correctional Health Service Records at Port Phillip Prison indicate that on 21 May 2010 Mr Drake: “presented as malodorous, poor self hygiene, restless, partial orientation depending on the time of day, ongoing command hallucinations (telling Stephen to kill himself), vague paranoid themes. The prior day he was also reviewed where he presented similar except he made statements that he „had given up trying to get help to get rid of the voices‟.” -- 2 of 8 -- 3 Report of Dr Schramm [3] In his report dated 7 September 2011, Dr Schramm indicated that Mr Drake has a diagnosis of chronic schizophrenia and mental retardation. Dr Schramm indicated that because of Mr Drake‟s lack of verbal skills he could not access Mr Drake‟s thinking at the time of the offences. Dr Schramm noted, however, that the behaviours, in that he makes bomb hoaxes, are not new and that they are quite odd and naïve. They also have occurred without Mr Drake being concerned about being discovered. [4] Dr Schramm opined that the making of these phone calls is a: “primitive, naïve and immature response to frustration and sometimes as revenge. One could hypothesise that the behaviour represents some maladaptive attempt to seek care or express distress in a man who is most isolated and detached from other human beings.” [5] Dr Schramm considers that some psychotic symptoms may be at play, but that can only be left on a level of hypothesis, given Mr Drake‟s inability to speak in relation to his mental functioning at the time of the alleged offences. Dr Schramm considered that even though Mr Drake may have some appreciation that making the phone calls is illegal and at some level wrong, he does not believe that Mr Drake has a complete understanding or appreciation of why these acts are wrong. [6] Dr Schramm opined that Mr Drake thinks the same way that a child thinks, in that he might have some appreciation that to do something is wrong but it does not approach the sophistication of an adult‟s appreciation of wrongness. He considered that just as a child may not be considered to be responsible or punishable at law, similarly Mr Drake should not be considered to be as responsible as an adult for committing the offence. Dr Schramm considered that it is arguable that Mr Drake made decisions by virtue of his cognitive impairments, due to his low IQ, chronic schizophrenia and possibly depression, without a moderate degree of sense and composure which therefore would mean he fulfils the criteria of being deprived of the capacity to know the wrongness of his actions. Report of Dr Phillips [7] Dr Phillips, in a comprehensive report dated 23 July 2012, has undertaken a thorough analysis of all Mr Drake‟s previous medical reports and background history. Dr Phillips considered that Mr Drake has a diagnosis of a mental disease or natural mental infirmity as described in s 27 of the Criminal Code Act 1899 (Qld) (“Criminal Code”), namely schizophrenia and a mild-moderate intellectual disability. Dr Phillips also indicated that Mr Drake was not able to recall whether he was experiencing mental health symptoms at the time of the alleged offences. [8] She considered, however, that it is likely that he was experiencing at least some psychotic symptoms throughout the period, given the chronic nature of his symptoms and the fact that he continues to experience residual psychotic symptoms even with assertive treatment whilst in custody. -- 3 of 8 -- 4 [9] Dr Phillips also considered that it is possible he has experienced some depressive symptoms during the period, which is supported by the presence of depressive and psychotic symptoms during an inpatient psychiatric admission following his arrest. [10] However, Dr Phillips concluded that at the time of the alleged offending she does not consider Mr Drake was in such a state of mental disease or natural mental infirmity such as to deprive him of the capacity to know what he was doing or the ability to control his actions. [11] She also considered that during the period of offending Mr Drake was in such a state of mental disease as to impair his ability to know he ought not do the act but not totally deprive him of this ability. She considered that his ability to appreciate the wrongness of his actions may well have been impaired due to the combination of cognitive psychotic and possibly depressive symptoms but she has not found sufficient evidence to suggest that at the times of the alleged offending he was fully deprived of the capacity such that he was unable to reason with a moderate sense of composure. In particular she noted an assessment on 13 July 2010 indicated that he was „stable‟. [12] Dr Phillips stated that the residual symptoms present at the time of her assessment did not impact on his ability to reason about the matters in a sensible manner. She does not consider he was intoxicated at the time. [13] Dr Phillips conceded that at times after his release he was very unwell and was non- compliant with his medication. Dr Phillips also considered that he would have been experiencing some psychotic symptoms. In her view, however, the real question was to what extent they were present. She considered that during her assessment it appeared that his primary motivation was retaliation or revenge and the behaviour acted as a mechanism to discharge his anger. She considered he was trying to get back at people at the church and that it was his maladaptive way of seeking help and attention from others. It also gave him a feeling of power and control. [14] In her evidence Dr Phillips considered it was significant there was no evidence he was so distressed by his psychotic experiences in the period that he sought help as he had done in the past when acutely unwell. Dr Phillips did not consider that she saw any real evidence that he was very unwell at the time. [15] In relation to fitness to plead, Dr Phillips considered that Mr Drake was fit to plead and that he had a basic understanding of court-related matters. She considered he was able to instruct counsel and would be able to endure a trial without serious adverse consequences to his mental health. She stated, however, that given his cognitive deficits and residual psychotic symptoms he would benefit from being given clear and simple explanations by his lawyer and the court and by the parties and the court avoiding complex terms or jargon. She also indicated he would benefit from having explanations of the court proceedings and plea options repeated over time. Report of Dr Neillie [16] Dr Darren Neillie has been Mr Drake‟s treating psychiatrist whilst in the prison mental health system. Dr Neillie stated that currently Mr Drake‟s mental state remains stable and that there is no evidence of thought disorder or delusional -- 4 of 8 -- 5 beliefs. He considered that Mr Drake continues to experience intermittent low grade auditory hallucinations, but he has told Dr Neillie that the medication has helped the voices. [17] Dr Neillie considered Mr Drake understood the charges and that he would be able to understand a plea. He also had a basic understanding of court proceedings. Mr Drake told Dr Neillie he would speak to his lawyer if he heard something in the court that he did not agree with and he considered that Mr Drake would be able to explain his version of facts to counsel and the court. [18] Both Dr Neillie and Dr Phillips supported a supportive community placement being made for Mr Drake into the future if he was not placed on a Forensic Order. Dr Phillips in particular was very supportive of the plan to refer Mr Drake to Disability Services Queensland for the consideration of availability of accommodation and additional support upon his release. Dr Phillips considered he would benefit from comprehensive pre-release discharge. [19] The Adult Guardian has been appointed until January 2013 when the appointment will be reviewed. [20] The report of Mr Andrew Woods, the Director of Clinical Practice in the Department of Communities, Disability and Community Care Services indicates that Mr Drake is assessed as eligible to receive services from Disability and Community Care Services (“DCCS”) from September 2012. He stated that the assessment he carried out indicated Mr Drake would benefit from extensive personal care and supervision. It was stated that upon Mr Drake‟s release and his being recognised as homeless by the Disability Service system a “desk-top reassessment and stability over-ride will be undertaken”, which will elevate him to the highest stability rating to receive services, subject to waiting times of clients on the same rating. The advice of the assisting psychiatrists [21] Both assisting psychiatrists indicated that the clinical evidence is that Mr Drake has suffered with two conditions; one is a lifelong intellectual impairment which would meet criteria for a diagnosis of mild mental retardation. The other is chronic paranoid schizophrenia which he has had for probably over 25 years. Dr McVie stated that his schizophrenic illness is characterised by command hallucinations, persecutory delusions, a certain degree of impairment of insight and a tendency to deny symptoms at cross-sectional interview. His illness has also been complicated by an itinerant lifestyle, non-compliance with treatment, poor self-care and a lengthy past criminal history, including convictions for threats to kill from 1993 and convictions for bomb hoax charges. [22] Dr McVie noted that even when he is on depot anti-psychotic medication he does present some residual psychotic symptoms. She stated that the difficulty in looking at the issue of deprivation of capacity in relation to the offences is the fact that he has two clear conditions that do interrelate and impact on each other. Schizophrenia and chronic schizophrenia in itself will result in cognitive deficits in the long term. Furthermore, the illness has been treated partially and intermittently. -- 5 of 8 -- 6 [23] Dr McVie stated that he has had the best consistency of treatment while he has been in custody but that periods of stress are likely to increase his symptoms. Further, while being in gaol can be a stress, being released from gaol can certainly be a stress and that may be one of the factors which resulted in a change in his mental state after he was released from gaol in June 2010. [24] Dr McVie indicated that Mr Drake has not been able to give a clear account of the offences which makes it difficult to determine what his thinking was at the time. In her view, s 27 of the Criminal Code is not about motivation or psychotic motivation but rather whether a person has a mental illness or an actual mental infirmity or both and having those conditions to the extent that they deprive a person of one of the capacities. [25] Dr McVie referred to the possibilities which were canvassed in the evidence by Dr Schramm and that he may well have been acting on a delusional belief. She considered that he may well have been acting on command hallucinations when he made bomb threats and he certainly previously told people that in relation to bomb threats. She stated that he may also have been acting on what Dr Schramm described as a grudge or a concern that he maintains for a long period of time due to the rigidity of thinking that is associated with intellectual disability. Furthermore, the perception that he has been wronged by others may either be based in reality or may be based in long-forgotten persecutory beliefs as part of his delusional system. There is also the possibility that he was acting out of some sort of frustration at the lack of support after release from gaol or frustration of his living arrangements in the community. Dr McVie considered that it is more likely than not that it was a combination of factors that resulted in his actions. [26] Dr McVie‟s advice was that: “On balance I would advise that Dr Schramm's opinion should be preferred; that on the balance of probabilities at the time of all these offences the combination of his intellectual impairment and his chronic paranoid psychotic illness resulted in deprivation of his capacity to know he ought not do the acts.”1 [27] Dr Davison supported that view. Was Mr Drake of unsound mind at the time of the alleged offences? [28] Having considered Mr Drake‟s long mental health history and the advice of the assisting psychiatrists I ultimately prefer the report of Dr Schramm. In particular I take into account the material supplied by the Department of Justice in relation to his admission in Victoria and that material indicates he was acutely unwell for most of 2010, despite the one report in July 2010 that he was stable. It is clear that despite five months of depot medication and care in the prison mental health system when he was released on 8 June 2010 “with a seven (7) day supply of medications only” he was experiencing active psychotic symptoms. He then committed the first of the June offences 10 days later. 1 Transcript 1-79 at lines 12-17. -- 6 of 8 -- 7 [29] On 4 November 2010, just days after the last of the October offences, Mr Drake was transferred to the Gold Coast Hospital (“GCH”) from the Southport watch house as he had been found trying to hang himself “partly due to voices and being fed up with life”. The GCH notes indicate “ongoing psychotic symptoms – mainly hallucinations”. As Dr Schramm and the assisting psychiatrists have indicated, Mr Drake was acutely unwell during the time. I consider that, because of the combination of his mental illness and his cognitive difficulties, he was in fact deprived of the capacity to know he ought not do the act. I am satisfied that his thinking was such during the time that he was deprived of that capacity. [30] In my view, whilst he had some awareness of the wrongness of his action, he was not able to reason at the time of the acts with a moderate degree of sense and composure about the nature and quality of the act and its wrongness. Is a Forensic Order required? [31] It is clear that Mr Drake is still on remand for the three Commonwealth offences and those matters are yet to be resolved. [32] However, in terms of the offences which are the subject of this reference, I need to determine whether a Forensic Order is required. In this regard, it is necessary to consider Mr Drake‟s current circumstances and his treatment needs. [33] The advice of the assisting psychiatrists was that having regard to the nature of the offences and Mr Drake‟s history, he clearly needs to be on long-term forensic order. They also advised that Mr Drake needs treatment by both Mental Health Services and support and care by Disability Support Services. Their advice was that a Forensic Order (Mental Health Court) was appropriate and they supported the draft Forensic Order from the Director of Mental Health, which provided for in-patient care at the Gold Coast Hospital with escorted leave only at this point in time. [34] I am satisfied that a Forensic Order is required and it would seem that the Forensic Order should be in the terms of the draft which has been submitted by the Director of Mental Health. It is clear that Mr Drake will be detained to the Gold Coast Authorised Mental Health Service, and there should be Limited Community Treatment, which is essentially escorted leave, which will be obviously progressed at the discretion of the treating psychiatrist. [35] In this regard I note in particular Dr Phillips‟ report and the concern also expressed by both of the assisting psychiatrists in relation to Mr Drake's progress into the future. It is clear that, as Dr Phillips indicates, there needs to be comprehensive planning in relation to the future and I note the appointment of the Adult Guardian at least until January 2013. I also note the report of Mr Andrew Woods, the Director of Clinical Practice at the Department of Communities, who has assessed Mr Drake as being eligible to receive services from DCCS from September 2012. [36] It would seem that there is a clear need for extensive personal care and supervision and that there needs to be extensive consultation and cooperation between all of the agencies so that services can be provided to Mr Drake into the future. FINDINGS AND ORDERS -- 7 of 8 -- 8 1. That the defendant was of unsound mind at the time of the commission of the alleged offences. 2. A forensic order be made detaining the Defendant to the Gold Coast Network Authorised Mental Health Service. 3. 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. Escorted (on and off 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. -- 8 of 8 --