Attorney-General for the State of Queensland v THL [2012] QMHC 20

MENTAL HEALTH COURT CITATION: A-G for the State of Qld v THL [2012] QMHC 20 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v THL PROCEEDING: No 0120 of 2012 DELIVERED ON: 28 August 2012 DELIVERED AT: Brisbane HEARING DATE: 31 July 2012 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr F T Varghese FINDINGS AND ORDER: 1. The appeal is dismissed. 2. The decision of the Mental Health Review Tribunal dated 4 May 2012 is confirmed. CATCHWORDS: Mental Health Act 2000 (Qld) APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – where the Attorney- General for the State of Queensland appeals a decision of the Mental Health Review Tribunal – where the Tribunal confirmed a forensic order and approved limited community treatment in respect of the respondent – where the issues for determination in the appeal are whether the Tribunal determined the matter in the absence of sufficient material, whether the Tribunal ought to have heard from the patient’s treating psychiatrist and family, and whether the Tribunal could be satisfied on the available material that the overnight leave conditions were appropriate – whether the appeal should be allowed. MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where the Attorney-General for the State of Queensland appeals a decision of the Mental Health Review Tribunal – where the Tribunal confirmed a forensic order and approved limited community treatment in respect of the respondent – where the issues for determination in the appeal are whether the tribunal determined the matter in the absence of sufficient material, whether the Tribunal ought to have heard from the patient’s treating psychiatrists and family, and whether the Tribunal could be satisfied on the available material that the overnight leave conditions were appropriate -- 1 of 9 -- 2 or the defendant was an unacceptable risk of harming himself or others – whether the appeal should be allowed. COUNSEL: EN Kenny for the Attorney-General for the State of Qld L Falcongreen for the respondent J Tate for the Director of Mental Health SOLICITORS: Crown Law for the Attorney-General for the State of Qld Legal Aid Queensland for the respondent Crown Law for the Director of Mental Health BODDICE J: [1] The Attorney-General for the State of Queensland appeals a decision of the Mental Health Review Tribunal dated 4 May 2012 confirming a forensic order and approving limited community treatment in respect of THL. The issues for determination in the appeal are whether the Tribunal proceeded to determine the matter in the absence of sufficient material, whether the Tribunal ought to have heard from the respondent’s treating psychiatrist and family, and whether the Tribunal could be satisfied on the available material that the overnight leave conditions were appropriate as the respondent was an unacceptable risk of harming himself or others. Background [2] The respondent, who is 38 years of age, was placed on a forensic order on 24 July 2008 after having been found of unsound mind in relation to charges of assault occasioning bodily harm, breach of bail conditions, and failure to obey a direction. The respondent suffers from chronic paranoid schizophrenia. His mental illness, which dates from his late teenage years, has led to numerous admissions to hospital. He also has an extensive forensic history, including offences of violence. [3] The respondent was transferred to the medium secure unit at The Park in June 2009. Prior to that transfer, he had been admitted to the Princess Alexandra Hospital after being placed on the forensic order by this Court. At the time of the Mental Health Review Tribunal hearing, and this Court’s hearing, the respondent remained in the medium secure unit at The Park. -- 2 of 9 -- 3 Tribunal hearing [4] The hearing was undertaken as part of the Tribunal’s review of the respondent’s forensic order and approved limited community treatment. The approved limited community treatment included provision for overnight leave on two consecutive nights a week. That leave was being undertaken at the residence of his sister, her husband, and their five children. [5] At the time of the hearing, neither the respondent’s consultant psychiatrist nor his regular registrar were available to give evidence. Instead, the Tribunal heard from Dr Bower, who had been asked to stand in place of the regular registrar. Dr Bower gave evidence of the respondent’s current history, and his responses to the graduated leave program previously approved as part of his limited community treatment. Apart from outlining the respondent’s present medication, Dr Bower gave evidence there had been no incidents of absconding since February 2010, and the respondent had been exercising limited community treatment without incident. Dr Bower also stated that whilst the respondent still experienced auditory hallucinations, those voices were derogatory, not command. He conceded their presence raised the risk. [6] Having considered all of the material and Dr Bower’s evidence, the Tribunal determined to confirm the existing forensic order, and approve limited community treatment on similar terms. In doing so, the Tribunal noted that whilst the treating team was requesting no changes to the limited community treatment conditions, there was an ambiguity in the wording of the current conditions which would allow those conditions to be interpreted as authorising two consecutive overnight leaves of absence twice a week - that is, four nights, rather than a maximum of three nights in any one week. Those three nights were made up of an entitlement to one overnight leave of absence a week and one continuous overnight leave of absence of up to two nights a week. [7] In confirming that approved limited community treatment, the Tribunal noted that the arrangement: “…is appropriate having regard to: -- 3 of 9 -- 4 [THL’s] rehabilitation needs His current stable mental state despite continuing auditory hallucinations which he is able to recognise cause him irritability and distress on occasions requiring PRN medication or return to The Park [THL’s] leaves are closely monitored by the staff at The Park to ensure his mental state is stable both before and after the leave takes place. He is subjected to urine drug screens and breathalyser tests that have proved negative. [THL] has been exercising up to three nights a week absences from The Park from March 2012 without incident. His family is supportive and are a protective factor for [THL]when he stays with them. [THL] is compliant with his treatment and is willing to continue with it. By so doing he reduces his risk of mental state deterioration. While his auditory hallucinations can increase his risk of aggression this has not happened in recent times and his is able to seek assistance when he feels the need. As pointed out in evidence his compliance with medication is key to minimising his risk of aggression. [THL] is aware that, as in the past his leave will be cancelled should he not comply with the conditions of his leave. [THL] does not represent an unacceptable risk of aggression and violence to the community in his current stable mental state with his current level of monitoring, treatment and support.” The appeal [8] The appeal is by way of rehearing. To succeed, there is no need for the appellant to establish an error of law. The issue for determination on appeal is whether the evidence establishes that the respondent does not represent an unacceptable risk to himself or the public if he were to be granted limited community treatment on the approved conditions. Submissions [9] The Attorney-General submitted that having regard to the respondent’s ongoing auditory hallucinations, and his past history of aggression, it was essential for the Tribunal to hear evidence from his treating psychiatrist as to his performance on approved limited community treatment. The Attorney-General submitted it was insufficient for the Tribunal to rely upon evidence from a registrar and, in particular, a registrar who was not involved in the day to day care of the patient. -- 4 of 9 -- 5 [10] The Attorney-General further submitted the Tribunal could not be satisfied to the requisite standard that approving overnight leave for two consecutive nights was appropriate, as to do so rendered the patient an unacceptable risk to himself and others. The Attorney-General noted the patient had not been fully utilising his leave due to ongoing auditory hallucinations. [11] The Director of Mental Health submitted it was impractical to require the treating psychiatrist to give evidence at every hearing, and that it was appropriate for the Tribunal to receive evidence from a registrar, including a registrar not involved in the day-to-day care of the patient, as that registrar’s evidence represented the view of the treating team, including the treating psychiatrist. The Director of Mental Health further submitted that as the respondent has not presented any difficulties whilst exercising previously approved continuous overnight leave, the Tribunal was entitled to be satisfied to the requisite standard that the respondent did not represent an unacceptable risk to himself or others in all the circumstances. [12] The respondent’s legal representatives submitted the evidence placed before the Tribunal and this Court amply justified a confirmation of the respondent’s forensic order and the approval of limited community treatment, as the respondent did not pose an unacceptable risk to himself or others. Medical evidence [13] The court heard evidence from Dr Steadman, the respondent’s treating psychiatrist, and Dr Bower, the registrar who gave evidence before the Tribunal. [14] Dr Steadman gave evidence that the respondent’s medical condition remained stable and he continued to access approved limited community treatment without incident. Dr Steadman noted the existence of this leave was an important factor in maintaining the respondent’s stability. Dr Steadman did not consider the respondent represented an unacceptable risk to himself or others in accessing such approved community treatment, including continuous overnight leave. Dr Steadman noted the respondent, whilst continuing to experience auditory hallucinations, was able to identify the risk and would return to the Centre if he felt uncomfortable in accessing any approved limited community treatment. -- 5 of 9 -- 6 [15] Dr Steadman did not consider it necessary for a Tribunal to hear evidence from the treating psychiatrist. Whoever gave evidence before the Tribunal presented the current opinion of the treating team. Dr Steadman also did not consider it necessary for a patient’s family to give evidence before the Tribunal as to the appropriateness of a patient accessing approved community treatment at their residence. Dr Steadman opined that the treating team is in the best position to assess the appropriateness of any residence for access to approve community treatment, and that it placed a patient’s family in a difficult position should they be required to give evidence before the Tribunal. [16] Dr Bower gave evidence that whilst he was not a member of the respondent’s treating team when he gave evidence before the Tribunal, he had been thoroughly briefed by the respondent’s regular registrar as to the respondent’s current treatment and medical condition. His evidence involved the reporting of that briefing to the Tribunal. He accepted that at the Tribunal there was confusion as to the wording of the limited community treatment conditions and, in particular, as to the number of nights allowed for approved overnight leave. Assisting psychiatrists [17] Dr McVie advised the respondent has a chronic treatment resistant schizophrenic illness which had been complicated in the past by non-compliance, itinerancy and cannabis abuse. Whilst Dr McVie considered a trial of Clozapine ought to be undertaken as soon as possible, the treating team’s current management plan was appropriate given his current level of symptoms. Dr McVie considered the time spent with his family would assist in his rehabilitation. Dr McVie further advised that the wording of the limited community treatment conditions was unlikely to cause confusion to members of the treating team. [18] Dr Varghese disagreed with Dr McVie’s advice. Dr Varghese advised that an expectation that the consultant psychiatrist attend every Tribunal hearing would cause the system to “quickly grind to a halt.”1 Whilst it would be preferable for a consultant to attend, there are inevitable cases where that is not possible, and where the Tribunal appropriately acts on the evidence of the registrar, who appears as 1 T1-35/15. -- 6 of 9 -- 7 agent for the consultant. Dr Varghese further advised it would be unrealistic to expect a patient to be entirely free of psychosis before the granting of any overnight leave. Discussion [19] There is no doubt the respondent has a long-standing mental illness which is challenging for any treating team. Not only does the respondent suffer from long- standing treatment resistant schizophrenia, he continues to suffer auditory hallucinations. However, those hallucinations are being appropriately managed and treated by his treating team. [20] I accept the evidence of Dr Steadman as to the respondent’s current stable condition. I also accept his evidence as to the importance of a graduated approved limited community treatment regime in his ongoing management. Dr Steadman impressed me as leading a team which carefully considers the appropriateness of the accessing of any approved overnight leave before granting such leave to the respondent. That assessment included any risk to the respondent or others from his being granted overnight leave. [21] Having considered Dr Steadman and Dr Bower’s evidence, and the material placed before the Tribunal, I am satisfied the respondent does not represent an unacceptable risk of harm to himself or others by being granted approved limited community treatment on the conditions approved by the Tribunal. [22] The conditions as presently framed are ambiguous and open to confusion. On one view, they suggest a graduated program of approved limited community treatment, allowing for one overnight leave per week or, where appropriate, one continuous overnight leave per week. However, the evidence establishes that the intention of the treating team is that the respondent be granted one overnight leave per week and, in the event that that overnight leave is successful, one continuous overnight leave per week for up to two nights. This represents a total of three nights overnight leave per week. -- 7 of 9 -- 8 [23] Whilst I am satisfied such a graduated program of approved community treatment is appropriate in the circumstances, the conditions ought to be drafted so that they are clear to any person involved in the treating team, including those asked to stand in in the absence of a regular member of that team. [24] To ensure there is no confusion, conditions (e) and (f) of the approved limited community treatment should read: “(e) an overnight absence one night per week; (f) if such overnight absence is undertaken satisfactorily in the assessment of the treating psychiatrist, a continuous absence of two nights per week.” [25] Whilst those findings are sufficient to dispose of the appeal, the grounds of appeal raised the appropriateness of a Tribunal proceeding to determine a matter in the absence of any evidence from the treating psychiatrist or from family members whose residence will be accessed as part of any overnight leave. [26] Whether a Tribunal ought to hear from the treating psychiatrist, and from members of the family, will depend on the circumstances being considered by that Tribunal. For example, if a Tribunal is being asked to approve, for the first time, limited community treatment on conditions different to those previously considered by the Tribunal, it would generally be essential for the treating psychiatrist to attend and give evidence at any hearing. A change in approved limited community treatment may give rise to different risks to the patient, and others. As the Tribunal must consider, in approving limited community treatment, whether the risks are unacceptable in the circumstances, it would be prudent for the Tribunal to hear evidence from the treating psychiatrist rather than the registrar or another member of the treating team. However, if the Tribunal is merely being asked to confirm previously approved limited community treatment on the same conditions as before, there may be no need for the treating psychiatrist to give evidence at that hearing. In that instance, evidence from the registrar as a member of the treating team may suffice. [27] Similarly, it may not be necessary for a Tribunal to hear evidence from a family member in order to determine the acceptability or otherwise of any risk. Usually, -- 8 of 9 -- 9 the conditions of any approved limited community treatment would specifically require that that treatment only be accessed at the discretion of the treating psychiatrist. As such, it is appropriately a matter for the treating psychiatrist to discuss the form of any overnight leave with family members, including the appropriateness of the proposed residence. It would generally be impracticable for the Tribunal to be required to undertake that task. Further, it may significantly impact upon the relationship between that family member and the patient if the family member was required to give evidence before the Tribunal. [28] Ultimately, it is for the Tribunal to determine what evidence is required, having regard to its overriding requirement that it may not approve limited community treatment unless satisfied the patient does not present an unacceptable risk of harm to the patient or others. Orders 1. The appeal is dismissed. 2. The decision of the Mental Health Review Tribunal dated 4 May 2012 is confirmed. -- 9 of 9 --