Baarsoe, Re [2012] QMHC 9

MENTAL HEALTH COURT CITATION: Re Baarsoe [2012] QMHC 9 PARTIES: REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF ADAM BAARSOE PROCEEDING NO: 0216/11 DELIVERED ON: 23 February 2012 DELIVERED AT: Brisbane HEARING DATE: 7 February 2012 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr J M Lawrence FINDINGS AND ORDERS: 1. Mr Baarose was not of unsound mind at the time of the commission of all the alleged offences the subject of the reference. 2. Mr Baarsoe is permanently unfit for trial. 3. The proceedings against Mr Baarsoe are discontinued and further proceedings must not be taken against him for the acts or omissions constituting the offence. 4. A forensic order is required given the seriousness of the offences, Mr Baarsoe’s treatment needs and the protection of the community. 5. Mr Baarsoe’s permanent unfitness for trial is a consequence of an intellectual disability and Mr Baarsoe is to be detained for care in the Forensic Disability Service. 6. Limited Community Treatment is approved subject to the following conditions; a) The client may undertake treatment or rehabilitation in the community by way of: i. Escorted absences from the Forensic Disability Service ii. Unescorted absences from the Forensic Disability -- 1 of 20 -- 2 Service iii. Residence at the Wacol Duplex, 1B Quarry Drive, Wacol b) On escorted absences, the client is to be accompanied by a Forensic Disability Service or Department of Communities (Disability and Community Services) staff member or members at all times and shall obey their lawful instructions; c) On unescorted absences, the client is to be accompanied by a responsible adult approved by the Senior Practitioner at all times; d) Whilst residing at the duplex as contained in condition 1(c), the patient is not to leave the duplex unless accompanied by a staff member from the Forensic Disability Service, Department of Communities (Disability and Community Care Services) or a responsible adult approved the Senior Practitioner and shall obey their lawful instructions at all times; e) The client must comply with all appointments for follow up and individual development plans as required by the Senior Practitioner; f) The client must not use alcohol or illicit drugs and must cooperate fully in random medical tests for those substances as required by the Senior Practitioner; g) That the client not drive a motor vehicle; h) The client is not to possess any firearm or other offensive weapon; i) The limited community treatment is to be implemented subject to the assessment of the Senior Practitioner that it is appropriate having regard to the client’s mental condition at the time -- 2 of 20 -- 3 of the implementation. COUNSEL: J Briggs 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: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) Director of Forensic Disability (Qld) A LYONS J: [2] Mr Adam Baarsoe is 27 years of age and suffers from a profound intellectual disability and epilepsy. Mr Baarsoe is charged with nine offences which are alleged to have occurred in a five month period between August 2010 and January 2011. Those offences include assault occasioning bodily harm on 24 August 2010; assault on 9 September 2010; wilful damage on 30 September 2010; wilful damage on 1 October 2010; wilful damage on 19 December 2010; wilful damage on 4 January 2011; one count of obstructing police on 13 January 2011; assault occasioning bodily harm on 15 January 2011; and common assault on 8 January 2011. [3] Mr Baarsoe was in the care of the Department of Communities at the time of all these alleged offences and remained in the Department‘s care until he was taken into custody for these offences. He has been in prison on remand for over a year. [4] This is a reference by Mr Baarsoe‘s legal representatives Legal Aid Queensland dated 7 July 2011. -- 3 of 20 -- 4 Background [5] Mr Baarsoe‘s intellectual disability arose as a secondary consequence of a meningeal infection at the age of 4 months. Since that time he has required specialist care and attention, first through the Education Department and later through Disability Services Queensland (DSQ). Mr Baarsoe has a history of aggressive and disinhibitive behaviour as a result of his intellectual disability. His aggression has become more intense and his aptitude for violence has increased with age. There have also been times of increased confusion due the fact that he has epilepsy and he has difficulty complying with his anti-epileptic medication. There is no Axis 1 major mental illness or any other signs of mental illness. [6] Mr Baarsoe had largely been managed by DSQ in the community. Mr Baarsoe had not been in trouble with authorities, except for a nuisance charge in 2006, until June 2009 when he was prosecuted for a number of offences including improper use of an emergency call service, trespass, as well as 2 counts of assault and obstructing a police officer. The Report of Dr Chiu [7] Dr Chiu assessed Mr Baarsoe on 21 November 2011 and indicated that Mr Baarsoe was not oriented to the day, month or year and he felt he had only been in prison for a week. She considered his judgment and insight were poor. Dr Chiu considered that Mr Baarsoe could not give a clear account of the offences, but that there was no dispute of facts. Although Dr Chiu considered that Mr Baarsoe suffers from a very significant intellectual disability, she did not consider he was deprived of any of the capacities as a result of his mental condition. Dr Chiu concluded: ―Mr Baarsoe has the capacity to know the difference between right and wrong. He was aware that his actions were harmful. Therefore, he was not deprived of the capacity to know that he ought not do the acts. Mr Baarsoe has the capacity to control his actions. He knew the nature of his act at the time albeit with some impairment.‖ It would appear that Mr Baarsoe tends to respond poorly if his needs are not met and has poor problem solving skills. However there is clear collateral history indicating that Mr Baarsoe is able to be directed by carers whom he trusts and knows and also that his behaviour can be influenced by authority figures such as the police. Therefore, it is my opinion he was not of unsound at the time of the offences.‖ Report by Professor O’Brien [8] Mr Baarsoe was assessed by Professor Greg O‘Brien on a number of occasions and in his 3 May 2011 report he noted that Mr Baarsoe has had multiple assessments by clinicians and neuropsychologists over the years which establish that his intellectual functioning is in the bottom one per cent of the population. Dr O‘Brien‘s report indicates that Mr Baarsoe lacks the capacity to express himself, to understand others and to concentrate. He also considers that he is incapable of caring for himself. -- 4 of 20 -- 5 [9] Professor O‘Brien indicated that DSQ have attempted to work with Mr Baarsoe over many years, that he had been placed in housing dedicated to him and his own care staff and that he had been placed at some distance from main population centres for reasons of public safety. Whilst Mr Baarsoe has been in prison on these current charges the Department of Communities has been preparing a report to plan for his ongoing care in some kind of custom built secure housing. Professor O‘Brien indicated that he and the Mental Health Assessment and Outreach team have been actively involved in Mr Baarsoe‘s care planning and will continue to be involved. [10] Professor O‘Brien stated that Mr Baarsoe is a very large man with moderate obesity. He indicated that when he saw Mr Baarsoe in May 2011 he was very confused and this was a result of his epilepsy medication having reached the toxic range. Professor O‘Brien stated that even on close questioning it was clear Mr Baarsoe did not understand why he was in prison. Furthermore, whilst he had seen Professor O‘Brien on a number of occasions he had no memory of him or his previous visits. [11] Professor O'Brien also considered that, although his aggressive behaviour is due to his disinhibition, when he is confronted about his behaviour he will follow directions either from carers or the police. He considered that all of the evidence is that Mr Baarsoe knows it is wrong to attack people and has some variable degree of control over his behaviour. [12] Professor O'Brien did not consider that Mr Baarsoe was deprived of the capacity to understand what he was doing or the capacity to control his actions or the capacity to know he ought not do the act at the time of the alleged offences. Was Mr Baarsoe of unsound mind? [13] The reports of Dr Chiu and Professor O‘Brien indicate that Mr Baarsoe was not deprived of any of the relevant capacities at the time of the alleged offences. [14] The assisting psychiatrists also considered that Mr Baarsoe was not deprived of any of the relevant capacities. [15] On the basis of the reports and the advice of the assisting psychiatrists I am satisfied that Mr Baarsoe was not of unsound mind at the time of the commission of the alleged offences. [16] Should the proceedings continue according to law? Is Mr Baarsoe fit for trial? [17] Professor O'Brien considers that, given Mr Baarsoe‘s current level of functioning, Mr Baarsoe is not currently fit for trial and that he would remain unfit permanently given the severe degree of his intellectual impairment. He stated that Mr Baarsoe would not be able to follow ―even two sentences of the first minute of Court proceedings, and certainly would only have the most superficial notion of what was happening in the Court.‖ Dr O‘Brien continued: ―More specifically he would not be able to follow the course of proceedings as to understand what was going on in Court. He does not understand the substantial effect of any evidence against him. He would not be able to make his defence in answer to the charge. He would not be able -- 5 of 20 -- 6 to instruct counsel by giving any necessary instruction. He could not address Court in order to take part in the trial.‖ [18] Professor O'Brien does not consider Mr Baarsoe has ever been fit for trial. [19] Based on the reports of the reporting psychiatrists as well as the advice of the assisting psychiatrists I am satisfied Mr Baarsoe is unfit for trial and that that condition is permanent. [20] Accordingly, pursuant to s 283(a) the proceedings against Mr Baarsoe are discontinued and pursuant to s 283(b) further proceedings must not be taken against him for the act or omission constituting the offence. Is a Forensic Order Required? [21] Section 288(2) then provides that if a person is found to be permanently unfit for trial the Court may make a forensic order. [22] Section 288 provides as follows: 288 Mental Health Court may make forensic order (1) This section applies if, on a reference, the Mental Health Court decides a person charged with an indictable offence— (a) was of unsound mind when the alleged offence was committed; or (b) is unfit for trial for the alleged offence and the unfitness for trial is of a permanent nature; or (c) is unfit for trial for the alleged offence and the unfitness for trial is not of a permanent nature. (2) The court may make an order in accordance with this division (a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(a) or (b) that the person be detained for involuntary treatment or care. (3) The court must make an order in accordance with this division (also a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(c) that the person be detained for involuntary treatment or care. (4) In deciding whether to make an order under subsection (2), the court must have regard to the following— (a) the seriousness of the offence; (b) the person‘s treatment or care needs; (c) the protection of the community. (5) After deciding to make an order under subsection (2), or for the purpose of making an order as required under subsection (3), the court must consider whether the person‘s -- 6 of 20 -- 7 unsoundness of mind or unfitness for trial is a consequence of an intellectual disability. (6) If the court does not consider the person‘s unsoundness of mind or unfitness for trial is a consequence of an intellectual disability, the order— (a) must be a forensic order (Mental Health Court); and (b) must state that the person is to be detained in a stated authorised mental health service for involuntary treatment or care. (7) If the court considers the person‘s unsoundness of mind or unfitness for trial is a consequence of an intellectual disability, the order— (a) must be a forensic order (Mental Health Court— Disability); and (b) subject to subsections (8) and (9), must state which of the following services the person is to be detained in for care— (i) the forensic disability service; (ii) a stated authorised mental health service. (8) In deciding whether a forensic order (Mental Health Court—Disability) is to state that the person is to be detained in the forensic disability service for care, the court must have regard to the following— (a) whether the person has an intellectual or cognitive disability within the meaning of the Forensic Disability Act but does not require involuntary treatment for a mental illness under this Act; (b) whether the person is likely to benefit from care and support within the meaning of the Forensic Disability Act provided in the forensic disability service. (9) A forensic order (Mental Health Court—Disability), must not state that the person to whom the order relates be detained in the forensic disability service for care unless a certificate given to the court under section 288AA states that the forensic disability service has the capacity for the person‘s detention and care. (10) To remove any doubt, it is declared that the court is not required to have regard to the matters mentioned in subsection (8)(a) and (b), or a certificate given to the court under section 288AA, in deciding whether to make an order under subsection (2). (11) A forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability) must be in the approved form. -- 7 of 20 -- 8 (12) In this section— benefit means benefit by way of individual development and opportunities for quality of life and participation and inclusion in the community. [23] In determining whether a forensic order is required s 288(4) requires the Court to consider: (i) the seriousness of the offence; (ii) the person‘s treatment or care needs; and (iii) the protection of the community. Are the requirements of s 288 (4) satisfied? [24] It is clear that Mr Baarsoe‘s offences are serious. He committed nine offences, which were essentially all assaults, in a five month period. Furthermore there is no doubt that the community continues to be at risk because of his aptitude for violence. Professor O‘Brien, in his report dated 18 November 2011, stated that there was evidence of an increase in physical assaults in October and November 2011. He concluded that Mr Baarsoe presents an ongoing physical risk of violence. The reports also indicate that Mr Baarsoe has been aggressive even within the prison context. In that secure setting he has been required to be isolated from others because of the risk of violence towards other prisoners. Professor O‘Brien‘s view is that he requires secure care on an individual and personal basis. He considers that he needs at least a medium-secure level of security. Professor O‘Brien stated that his view is that Mr Baarsoe needs a physically robust setting, staffed with a team expert in the management of violence who are particularly informed about Mr Baarsoe‘s level of disability. [25] Professor O‘Brien told the Court that it was not currently proposed that Mr Baarsoe be managed by the Forensic Disability Service (―FDS‖). Instead he would be placed in accommodation which was more physically robust than that provided in the FDS given that his previous conduct has included tearing material from the walls to use as weapons. It was proposed that he would then be intensively supported in that accommodation by disability services staff. Professor O‘Brien considered that the only accommodation which was appropriate to contain him was the duplex at Wacol which was being prepared for him by the Department of Communities but was actually outside the FDS. In that environment it was proposed that the team would ―gradually, slowly, carefully, supportively but properly help him to conduct himself more appropriately.‖ [26] Because of the extensive planning which had taken place towards his placement in that duplex at Wacol it was argued by Counsel for the Director of Forensic Disability that a forensic order under the Mental Health Act 2000 (Qld) (―MHA‖) was not required. In particular it was argued that an order under Part 10A of the Disability Service Act 2006 (Qld) (―DSA‖) would be sufficient to detain Mr Baarsoe in that facility and that the DSA would also authorise a range of restrictive practices including containment, seclusion, as well as chemical and physical restraint. It was submitted that such practices would ultimately be reviewed by QCAT and that that was an appropriate review mechanism in all of the circumstances. -- 8 of 20 -- 9 [27] I am concerned by that submission. Clearly Mr Baarsoe is charged with 9 serious offences and I have found that he does not have a defence of unsoundness of mind. If he was ‗fit for trial‘ he would be in the criminal justice system. As he has an intellectual disability he will not face a trial. However there is a mechanism which has been established under the MHA and through the Mental Health Court whereby there is a recognition and a notification of the seriousness of the initial charges to the community at large. That process is the making of a forensic order. I agree with Mr Lossberg‘s submission that ―Parliament has introduced a system designed to minimize those risks to the community. This system is the Forensic Order.‖ [28] Furthermore, it is that Order which authorises the detention of the person to either an Authorised Mental Health Service (AMHS) or a FDS. A forensic order is made because of a person‘s level of dangerousness and that order actually detains them not only to prevent risk to the community but also to allow proper assessments and to allow plans to be put in place to enable a future transition back to a more suitable community placement. The forensic order regime also recognises and guarantees a patients rights. Forensic orders are regularly and thoroughly reviewed by the Mental Health Review Tribunal to ensure that a forensic order is still required and that the Limited Community Treatment (―LCT‖) conditions are appropriate given the level of risk the person poses to the community. [29] I am concerned that it is considered that the provisions of s 10A of the DSA would be sufficient to contain Mr Baarsoe once an order was made that his criminal proceedings are discontinued pursuant to s 283 of the MHA. He could no longer be held in custody and he would therefore be free to leave the corrective services facility. It was argued that s 123O of the DSA would be the relevant section which would be used to contain Mr Baarsoe on his release and to require him to go to the Wacol duplex. [30] That section relevantly provides. 123O Containing or secluding an adult under short term approval (1) A relevant service provider may contain or seclude an adult with an intellectual or cognitive disability if— (a) there is an immediate and serious risk of harm to the adult or others; and (b) the containment or seclusion is necessary to prevent the adult‘s behaviour causing harm to the adult or others; and (c) the containment or seclusion is the least restrictive way of ensuring the safety of the adult or others; and (d) the containment or seclusion complies with— (i) a short term approval given by the adult guardian under the GAA, chapter 5B, part 4; and (ii) if a short term plan for the adult has been approved under the GAA, chapter 5B, part 4—the short term plan; and -- 9 of 20 -- 10 (e) the relevant service provider keeps and implements a policy about use of containment or seclusion under this section as required under division 6; and (f) the relevant service provider complies with section 123Z. (2) It is not necessary to obtain the adult‘s consent to the containment or seclusion of the adult under this section. [31] In my view that is a very precarious section to rely on to ensure the adequate protection of the community. My reading of the section indicates that the section is essentially aimed at an emergency situation. Whilst it may possibly be the case that on release Mr Baarsoe will be ―an immediate and serious risk of harm‖ to himself or others, there is absolutely no certainty that such an emergency will arise. Despite his historic propensity for aggression at times of stress he is not always aggressive. He can be aggressive at times. As Dr Lawrence pointed out he has had long periods when he has not been aggressive. Mr Baarsoe behaved perfectly appropriately during the hearing which occupied several hours. It would have been a stressful situation for him given he could not really follow what was going on. I am not certain how officers from DSQ can be so certain that immediately after he is released from custody he will be an ―immediate and serious risk of harm‖ to himself or others, such that they will have to contain him in a locked facility without the need to obtain a Court or Tribunal order in advance to authorise such detention. [32] Furthermore that section requires both that the relevant service provider must be satisfied that containment will be necessary to prevent harm to himself or others and it must be the least restrictive option. In addition the proposed containment at the Wacol duplex would have to comply with the short term approval given by an independent statutory officer, namely the Adult Guardian, who would also need to be satisfied that there was indeed an ―immediate and serious risk of harm‖. [33] It would seem to me that the argument that, in Mr Baarsoe‘s case, the protection of the community is ensured by reliance on the provisions of Part 10A of the DSA is flawed. I am not satisfied that the protection of the community can be assured or that Mr Baarsoe can even be legally contained at the Wacol duplex once he is released from custody given there is no certainty the requirements of s 123O would in fact be satisfied immediately on his release from custody. At the time of the hearing the Adult Guardian had not been appointed and there was no current QCAT order. If Mr Baarsoe was settled and well behaved on release there would technically be nothing to prevent his parents taking him home if a forensic order was not in place. [34] Both the assisting psychiatrists considered that a forensic order was required. Dr McVie indicated that a forensic order was clearly indicated given ―the nature of the offences, his history, his extensive care needs and also Professor O‘Brien‘s oral evidence where he described Mr Baarsoe as having a significant level of dangerousness‖. [35] Dr Lawrence‘s advice was in the following terms; ―I am concerned, as I am sure many are, that there must be some oversight of this man's care into the future and he seems literally to have sort of disappeared -- 10 of 20 -- 11 on a number of occasions from view, so to speak, whilst in the care of the Disability Support Service in the communities as reflected in the lengthy period in gaol and the relative lack of communication with his concerned family over quite a number of years. Those are my concerns. I would not wish to see this man placed into a situation where he disappears from view again for years on end. I do think that a forensic order which would require the oversight from the Mental Health Review Tribunal would only be in his best interests and protect those of the community as well.‖ [36] Accordingly I consider that the requirements of s 288(4) have been satisfied and that a forensic order is indeed required. [37] Before leaving the consideration of s123O, I would like to record that I have concerns in relation to what was proposed for Mr Baarsoe under that section and his basic human rights given the United Nations Principles. It would seem to me that what was essentially proposed was a plan that he would be detained on release without any judicial body authorising his detention or any mechanism for an appeal of that decision. Whilst it is called ―containment‖, it is clearly more akin to detention given Professor O‘Brien has indicated that he will need the equivalent of ―medium secure‖ level of security. Mr Baarsoe clearly would be in a locked facility with 24-hour supervision and he will not be allowed to leave the facility without an escort. It would appear to me that what is proposed is actually detention for possibly six months without a court order of any sort but rather a review by QCAT some six months after the event. I also note Mr Baarsoe‘s father‘s concerns that the duplex sounds a bit like ―solitary confinement‖. [38] It is also of concern that Mr Baarose was in custody for 13 months given the level of his intellectual disability and the fact that the Department of Communities knew he was there. Whilst the Adult Guardian had previously been appointed in relation to consent for restrictive practices that appointment lapsed whilst Mr Baarsoe was in custody. If suitable accommodation had been sourced an application for bail could have been made. As Mr Baarsoe‘s counsel and the assisting psychiatrist have observed he seemed to have disappeared from view until Legal Aid was appointed. I also have concerns about the level of oversight into his care before he was remanded in custody. [39] A forensic order will not only assure the appropriate protection of the community it will also ensure that there is appropriate and continuing review of Mr Baarsoe‘s placement and his care needs. [40] Having determined that a forensic order is required in order to detain Mr Baarsoe, consideration needs to be given to the other requirements of s 288. Is Mr Baarsoe’s unfitness for trial is a consequence of his intellectual disability? [41] Pursuant to s 288(5) the Court is required to consider whether Mr Baarsoe‘s unfitness for trial is a consequence of his intellectual disability. Dr O‘Brien‘s report clearly states that Mr Baarsoe does not have a diagnosis of a mental illness. Accordingly, on the basis of the reports of Professor O‘Brien and Dr Chiu as well as -- 11 of 20 -- 12 the advice of the assisting psychiatrists, I am satisfied pursuant to s 288(5) that Mr Baarsoe‘s unfitness is due to his intellectual disability. [42] Section 288(7) then mandates that if the person‘s unfitness for trial is a consequence of an intellectual disability the order ―must be a forensic order (Mental Health Court – Disability)‖ (―FOD‖). [43] It is clear that the unfitness arises as a result of his natural mental infirmity. Accordingly the order must be an FOD. [44] That then leaves the question as to whether, pursuant to that FOD, Mr Baarsoe should be detained to the FDS or an AMHS. Should Mr Baarsoe be detained in the Forensic Disability Service or an Authorised Mental Health Service? [45] Section 288(8) sets out the relevant criteria that needs to be considered in order to determine whether Mr Baarsoe should be detained to the FDS or an AMHS. [46] In order to detain a person in the FDS the Court must be satisfied that the person has an intellectual or cognitive disability but does not require involuntary treatment for a mental illness. There is clear evidence in this case that Mr Baarsoe does not have a mental illness and he clearly does not require involuntary treatment for a mental illness. Whilst he needs treatment for his epilepsy which is a mental disease it would seem that the Adult Guardian will provide consent in relation to his medication in this regard. [47] Dr Lawrence in her advice raised concerns about Mr Baarsoe‘s treatment needs. Dr Lawrence stated that despite the fact he did not have a mental illness, ―he has treatment needs, they may be of the behavioural kind. It is also necessary for his care, obviously, and also for the protection of the community, and I think that is the context of the seriousness of the offences with which he is charged.‖ [48] I note that even if Mr Baarsoe was detained to an AMHS under the current legislative scheme he could only be detained for care and that any treatment would need to be consented to by his guardian and that the authorised psychiatrist could not require any treatment under the terms of the forensic order including treatment for his epilepsy. [49] It would seem to me that the appropriate order is that Mr Baarsoe be detained in the FDS as there is nothing that an AMHS has to offer him given he has an intellectual disability. [50] However, before such an order can be made the Court needs to be further satisfied that Mr Baarsoe is likely to ―benefit‖ from care and support within the meaning of the Forensic Disability Act 2011 (Qld) (―FDA‖) provided in the FDS. Benefit is defined to mean ―benefit by way of individual development and opportunities for quality of life and participation and inclusion in the community‖. -- 12 of 20 -- 13 [51] Furthermore s 288(9) provides that the Court cannot make an order detaining a person to a FDS unless a Certificate is given to the Court pursuant to s 288A which states that the FDS has the capacity for the person‘s detention and care. [52] In the present case a relevant Certificate has been provided and Mr Baarsoe can be accommodated in the FDS. [53] It is clear however that this is not the preferred option. [54] Indeed, Professor O'Brien has indicated that there are no program interventions within the FDS which would be appropriate to any of Mr Baarsoe‘s needs. In essence he does not consider that Mr Baarsoe would in fact ―benefit‖ from care and support within the meaning of the FDA provided in the FDS. [55] Professor O'Brien indicated that intellectually Mr Baarsoe is: ―far more intellectually disabled than those individuals for which the Forensic Disability Service has been designed. By that I mean, the Forensic Disability Service offers a number of treatment programs which require a degree of insight and understanding and capacity to learn from past actions. His intellectual level is far too low for this. In summary, although he has no major mental illness and does have intellectual disability, his level of severe intellectual disability lies outwards of the scope of the Forensic Disability Service.‖ [56] Professor O'Brien concluded that Mr Baarsoe requires containment rather than treatment. He considered that Mr Baarsoe requires duplex-type secure accommodation, of the type provided at the Wacol site, which is quite independent of the FDS but located in close proximity. He noted, however, that all places at that site are currently occupied by individuals who also need this level of secure accommodation and a place for Mr Baarsoe would not become available until 12 March 2012. [57] Counsel for the Director of Forensic Disability argued therefore that the requirements of s 288(7) for the making of an order detaining a person to a FDS had not been satisfied as that section is subject to subsections (8) and (9), which require the Court to be satisfied that the person is likely to benefit from care and support in the FDS. It was submitted that Dr O‘Brien‘s evidence was that Mr Baarsoe was ―not likely to benefit‖ from care and support in the service. [58] Whilst I note Professor O‘Brien‘s view about the level of Mr Baarsoe‘s disability, I think it would be taking an unnecessarily restrictive view of the term ‗benefit‘ to conclude that Mr Baarsoe would not benefit from the services at the FDS. Mr Baarsoe may not get as much benefit from the FDS as other patients and he may not be able to participate and be included in the community to the same extent as others, but he must surely get some benefit. It must be remembered that benefit includes ―benefit by way of individual development and opportunities for quality of life‖. [59] Furthermore, the evidence is that the staff at the FDS are highly qualified and well motivated. The clear evidence was that they are in fact better trained than the staff at the Wacol duplex. As Mr Murphy, the Department of Communities Regional -- 13 of 20 -- 14 Director for Disability Services for the Brisbane region, stated in his evidence before the Court: ―It's a different staffing model that Dr Mason uses. His staffing model includes operational staff who may come to that job with a range of different disciplines but often practical disciplines. In addition to that, rostered on shift Dr Mason has professional staff - so psychologists, social workers, therapists. They work together on shift. That creates a different staffing complement and a different level of expertise. People who operate in a combination of support and respite services or the particular service that we would identify to support Adam if he came to a duplex don't have that level of training. They often don't have tertiary educational qualifications. We provide them with a Certificate 4 as part of their training, but they're less educated.‖1 [60] It would seem to me therefore that Mr Baarsoe would in fact gain some benefit from the services at the FDS. [61] This view is also supported by the advice of the assisting psychiatrists. Dr McVie‘s advice was in the following terms: ―I note that Professor O'Brien described that Mr Baarsoe would need some management plans to address his behaviour so he could learn to behave in a way to fit in better in society and that the benefits would be improved quality of life and improved opportunities for inclusion in the community, and Professor O'Brien advised that this management plan would be available at the duplex. He also advised that he would probably require about three to four years of this type of management before any alternate living arrangements could be considered… My preferred option would be that the forensic order would be to the Forensic Disability Service for the following reasons: We do have a certificate of capacity. I would advise that there is clear clinical evidence that he would benefit from management. If he can benefit from management in the duplex, he would certainly benefit from a management plan in the Forensic Disability Service. The Forensic Disability Service was supposed to be a purpose built secure facility for exactly this type of client, a person with primary intellectual disability who needs to be on a forensic order due to their level of dangerousness in order to contain them and prevent risk to the community, and in order that they can be properly assessed and plans put in place to enable a future transition back to a more suitable community placement. I also note from oral evidence the Forensic Disability Service has better trained staff and I would advise that somebody with such a severe disability would benefit from better trained staff, and the 1 Transcript p 58 at line 11. -- 14 of 20 -- 15 Forensic Disability Service, of course, solves the problems of the legalities of detention in a locked facility. The issues of consent for containment and seclusion and restrictive practices would be covered by the Forensic Disability Act. So overall my advice is that a forensic order is required and the Forensic Disability is the preferred service.‖ [62] Accordingly, I am satisfied that Mr Baarsoe would benefit from placement in the FDS. [63] It would seem to me therefore that all the requirements of s 288(8) and (9) have been met as a Certificate pursuant to s288AA of the MHA has in fact been provided as required. Counsel for the Director of Forensic Disability however argues that, even though the s 288AA Certificate which has been tendered states that there is capacity for Mr Baarsoe to reside in the FDS, ―the certificate also clearly states the ―The FDS has no capacity to manage extended LCT‖.‖ He essentially argues, therefore, that there should not be a FOD to the FDS due to this lack of capacity to manage LCT. [64] On my reading of s 288 and s 288AA, the sections simply refer to the Court needing to be satisfied that there is a certificate of capacity in relation to the persons ―detention and care‖. There is no reference to requiring satisfaction of capacity to manage LCT. Furthermore, it would seem to me that such capacity could be established if appropriate funding was provided. [65] Accordingly, I am satisfied that all the requirements for the making of a FOD have been satisfied and that the appropriate place of detention is in fact the FDS and not the AMHS. I agree with the advice of the assisting psychiatrists that not only is a FOD required but that, given Mr Baarsoe‘s particular needs, it should be a FOD to a FDS. He has an intellectual disability and not a mental illness and he needs to be properly managed by a specialist FDS who can assess him appropriately and put suitable plans in place for his future management with specialist oversight from experts in intellectual disability. [66] In this regard I note Dr Lawrence‘s observations in the following terms: ―I must say that from the evidence of seeing and watching Mr Baarsoe tolerate this Court hearing today over a lengthy period of time with virtually no evidence of very grossly disturbed behaviour and also bearing in mind some of the comments that we have had or information that we have had about possible precipitance of some of the more disturbed behaviour we have heard of in the past and bearing in mind that Mr Baarsoe was able to be raised by his obviously very caring family right up till well into adult life, I just wonder how intractable his learning ability is. I stress that from the point of view of treatment needs and the one thing we haven't really heard very much about today at all is issues of management plans to help him return to a state of what has been euphemistically called social inclusion. I am aware of the information or the plea perhaps from Mr Baarsoe's father that he not be put into solitary confinement -- 15 of 20 -- 16 which no doubt the suggestion of the duplex suggests that I agree would be detrimental to his treatment needs. As I would see it, certainly Mr Baarsoe needs careful containment in a secure environment. It would seem that the secure duplex is the best solution from that perspective as far as I can see.‖ [67] Accordingly I am satisfied that Mr Baarsoe should be detained to the FDS. Should the Court order or approve LCT [68] When the Court makes a forensic order the MHA provides that the Court may also order or approve LCT if the Court is satisfied that there is not an unacceptable risk that the patient would, if the treatment were undertaken in the community not return to the service when required, commit or offence or endanger the safety of welfare of himself or others. [69] Counsel for the Director of Public Prosecutions submitted that the most appropriate accommodation for Mr Baarsoe is in fact the Wacol duplex and that this could be implemented and managed if the Court made a FOD and approved LCT including overnight leave to the Wacol duplex. Such an order, it was submitted, would allow Mr Baarsoe to be under the care of the senior practitioner at the FDS and ensure continuing care and oversight from a group of experts in intellectual disability, as well as allowing him to have the most appropriate accommodation suitable to his needs. [70] I note Professor O‘Brien considers that the Wacol duplex is a better option than the FDS, although it is not clear to me on the evidence if that is simply because the duplex is more secure. Given Dr Lawrence‘s advice I am uncertain if it is actually the best option for Mr Baarsoe. Clearly that is a matter which can be fully explored at the FDS by the experts in intellectual disability. In any event the real issue is, if the duplex is in fact ultimately considered to be the most appropriate placement for him, can the Court, when ordering that Mr Baarsoe be detained to the FDS, approve LCT to the Wacol duplex given it is not actually part of the FDS? [71] I note that this is not an approach favoured by the Department of Communities. In his evidence, Mr Murphy stated: ―what I‘m saying is that the precedent will have been set and it may continue. So post Mr Baarsoe being supported there, it may continue to be used for that – for that purpose. So Accommodation Support and Respite Services loses service delivery capacity as a result of that‖. [72] As I understand the evidence of Mr Murphy it would seem that not only is the duplex accommodation not part of the FDS, it is a property managed by a different section of the Department specifically Accommodation Support and Respite Services and that a FOD with LCT to the Wacol duplex would be difficult for the Department because it would necessarily detain Mr Baarsoe to the FDS which is one part of the Department but he would actually reside in a facility owned and staffed by a different part of the Department. -- 16 of 20 -- 17 [73] Internal policies and difficulties within the Department of Communities can play no part in the determination I have to make. Those considerations would be completely irrelevant to the decision I must make under the provisions of s 288. The real issue is whether the provisions of the MHA allow this Court to approve LCT including overnight leave under the terms of a FOD requiring detention in a FDS? [74] Section 289 provides: 289 Mental Health Court may order, approve or revoke limited community treatment (1) The Mental Health Court may, under the forensic order for the patient, decide to do any 1 or more of the following— (a) order that the patient have limited community treatment subject to the reasonable conditions the court considers appropriate; (b) approve limited community treatment for the patient subject to the reasonable conditions the court considers appropriate; (c) revoke an order or approval for limited community treatment for the patient. ... (4) However, 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. (5) Also, the court must not order or approve limited community treatment for a patient mentioned in section 288(1)(c) unless it is satisfied there is not an unacceptable risk the patient would, if the treatment were undertaken in the community— (a) not return to the authorised mental health service when required; or (b) commit an offence; or (c) endanger the safety or welfare of the patient or others. (6) In deciding whether to order or approve limited community treatment for a patient, the court must have regard to the following— (a) the patient‘s mental state and psychiatric history; (b) the offence leading to the making of the forensic order for the patient; (c) the patient‘s social circumstances; (d) the patient‘s response to treatment and willingness to continue treatment or care. [75] I also note Counsel for Mr Baarsoe‘s submission that s 288(7) does not allow the Court to order that Mr Baarsoe be detained to the FDS and be granted LCT to reside -- 17 of 20 -- 18 at the Wacol duplex, because the FDS is defined only as a place, and not as a service (a verb) or as a service delivered from a place. [76] The term ―forensic disability service‖ is defined in Schedule 2 of the FDA as ―the forensic disability service declared under s 95.‖ Section 95 then provides that ―A regulation may declare a place to be a forensic disability service.‖ [77] It would seem to me that if it is indeed the case that the FDS is defined only as a place then the regulation could be changed to include the Wacol duplex within the declared place given that the duplex is in fact in close proximity to the FDS and indeed is mere metres from the perimeter of the declared place. If such a declaration was made then Mr Baarsoe could be placed within the most appropriate part of the FDS with the same supervision and oversight of the FDS staff and consideration would need not to be given to LCT at the Wacol duplex as he would actually be in the FDS. [78] Counsel for Mr Baarsoe argued that in the current circumstances the most appropriate accommodation for Mr Baarsoe was the duplex at Wacol and, in order to ensure that he was placed there, the ultimate submission was that, given the current legislative scheme, there should be a FOD with detention in an AMHS with LCT to the Wacol duplex. [79] Currently a FOD requiring detention to an AMHS regularly allows overnight leave to suitable accommodation, such as the Wacol duplex. However LCT conditions allowing overnight leave have not as yet been made in relation to a FOD with detention to a FDS because there is apparently insufficient staff to supervise such extended LCT. [80] Limited Community Treatment for a forensic disability client is defined in the Schedule of the FDA to mean ―the provision of some care and support for the client in the community.‖ [81] A ‗forensic disability client‘ is defined in s 10(1) of the FDA as ―an adult with an intellectual of cognitive disability for whom a forensic order (Mental Health Court- Disability) is in force for the person‘s detention in the forensic disability service.‖ [82] Significantly s 10(5) provides: (5) To remove any doubt, it is declared that a person who is a forensic disability client remains a forensic disability client while undertaking any limited community treatment under this Act. [83] I have carefully considered the legislation and I can find no impediment to this Court approving LCT in accordance with s 289 when a FOD is made. I am satisfied that this Court can therefore approve overnight LCT to the Wacol duplex. [84] I am also satisfied that the restrictions on LCT as expressed in Maygar (No 2) [2010] QMHC have no application in this case as that decision was made in relation to a completely distinguishable factual background. That decision concerned a mentally ill defendant who was found to be temporarily unfit for trial who also required treatment for a mental illness. -- 18 of 20 -- 19 [85] I will hear submissions from Counsel as to the appropriate LCT conditions. I note however that if the Wacol duplex is declared to be part of the FDS such an LCT condition would not be required. [86] I also consider that the LCT conditions should allow escorted leave with two escorts subject to the assessment of the senior practitioner. ORDERS 1. Mr Baarose was not of unsound mind at the time of the commission of all the alleged offences the subject of the reference. 2. Mr Baarsoe is permanently unfit for trial. 3. The proceedings against Mr Baarsoe are discontinued and further proceedings must not be taken against him for the acts or omissions constituting the offence. 4. A forensic order is required given the seriousness of the offences, Mr Baarsoe‘s treatment needs and the protection of the community. 5. Mr Baarsoe‘s permanent unfitness for trial is a consequence of an intellectual disability and Mr Baarsoe is to be detained for care in the Forensic Disability Service. 6. Limited Community Treatment is approved subject to the following conditions; j) The client may undertake treatment or rehabilitation in the community by way of: i. Escorted absences from the Forensic Disability Service ii. Unescorted absences from the Forensic Disability Service iii. Residence at the Wacol Duplex, 1B Quarry Drive, Wacol k) On escorted absences, the client is to be accompanied by a Forensic Disability Service or Department of Communities (Disability and Community Services) staff member or members at all times and shall obey their lawful instructions; l) On unescorted absences, the client is to be accompanied by a responsible adult approved by the Senior Practitioner at all times; m) Whilst residing at the duplex as contained in condition 1(c), the patient is not to leave the duplex unless accompanied by a staff member from the Forensic Disability Service, Department of Communities (Disability and Community Care Services) or a responsible adult approved the Senior Practitioner and shall obey their lawful instructions at all times; n) The client must comply with all appointments for follow up and individual development plans as required by the Senior Practitioner; -- 19 of 20 -- 20 o) The client must not use alcohol or illicit drugs and must cooperate fully in random medical tests for those substances as required by the Senior Practitioner; p) That the client not drive a motor vehicle; q) The client is not to possess any firearm or other offensive weapon; r) The limited community treatment is to be implemented subject to the assessment of the Senior Practitioner that it is appropriate having regard to the client‘s mental condition at the time of the implementation. -- 20 of 20 --