BAN, Re [2010] QMHC 21

MENTAL HEALTH COURT CITATION: Re BAN [2010] QMHC 021 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF BAN PROCEEDING: No 182 of 2009 DELIVERED ON: 7 September 2010 DELIVERED AT: Brisbane HEARING DATE: 30 August 2010, 7 September 2010 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr F T Varghese Dr E N McVie FINDINGS AND ORDER: 1. That the defendant was of unsound mind at the time of the alleged offences as defined in Schedule 2 of the Mental Health Act 2000 (Qld). 2. That the defendant be detained as a forensic patient at the Gold Coast Authorised Mental Health Service; 3. Limited Community Treatment is approved to commence immediately at the discretion of the treating psychiatrist on the conditions set out by the Director of Mental Health; 4. That the defendant have no contact with the complainant. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of common assault, two counts of wilful damage, one count of assault and obstruct police, one count of assault occasioning bodily harm – where defendant suffered from mental retardation – where defendant previously diagnosed with several conditions including attention deficit disorder, schizophrenia and post traumatic distress disorder – where defendant was the victim of sexual offences as a child – whether defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: J Briggs for the Defendant J Tate for the Director of Mental Health S Vasta for the Director of Public Prosecutions (Qld) SOLICITORS: Legal Aid Queensland for the Defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) -- 1 of 4 -- 2 PHILIPPIDES J: [1] The defendant is charged with the following offences: common assault and wilful damage on 5 April 2008, common assault on 10 May 2008, wilful damage on 31 May 2008, assault police and obstruct police both on 19 March 2009, and assault occasioning bodily harm on 18 July 2009. [2] The defendant was treated under the care of Dr Cook, psychiatrist, during the period 2003 to 2008. He and Dr Beech have provided reports to the Court and both gave oral evidence. [3] The clinical material indicates that the defendant suffers from mental retardation which was diagnosed at an early age. She has also been diagnosed over the years with a number of other conditions including: attention deficit disorder, schizophrenia and post traumatic distress disorder. [4] The defendant attended a special school to the age of 15 before being placed in 24 hour supported accommodation. Throughout her childhood she was prone to disruptive behaviour. She also was admitted to hospital on multiple occasions because of challenging behaviour, including an escalation in aggression to others, self harm, suicide threats, depression and eating disorder. The adolescent escalation of the defendant’s condition appears to have been attributed to sexual abuse and rape at the age of 13 by a family member. There are additionally language and speech problems which she suffers from. As a teenager, the defendant was placed in the care of Disability Services Queensland. [5] The defendant’s condition is complicated by a diagnosis of epilepsy, and she has been medicated for that condition. It is unclear whether that condition currently remains operative. I also note that Dr Cook indicated that he did not consider that the defendant can concurrently be said to suffer from schizophrenia or from ADHD. [6] I note that the defendant was assessed with a full scale IQ of 66 in 1999. Dr Cook indicated that he considered that assessment to remain a valid reflection of her underlying intelligence. It is apparent, particularly from Dr Beech’s report of 12 June 2009, that the defendant suffers from quite serious intellectual disability which has left her with a significant functional deficit. She cannot be left unsupervised. She requires constant care. If she is left unsupervised she has in the past drunk cleaning fluids and engaged in other dangerous behaviour. [7] Dr Beech diagnosed post traumatic distress disorder, which he considered to be secondary to the sexual abuse and rape. He opined that the difficulties which the defendant suffers from, including the post traumatic distress disorder, have resulted in “a toxic amalgam of emotional disturbance, behavioural difficulties and very limited repertoire of problem solving skills when confronted with novel situations, frustration and negative emotional states”. He also opined that the defendant’s situation was exacerbated by changes in living circumstances, the transient nature of her placement when he saw her in June 2009, and limited ability to employ a consistent behavioural management plan. [8] Dr Beech was of the view that the combination of intellectual impairment and other deficits deprived her of the capacity to understand the moral wrongness of her actions, and that, additionally, it was likely that in her heightened emotional state -- 2 of 4 -- 3 she was deprived of the capacity to control her actions; these deprivations arising from natural mental infirmity primarily. Dr Beech gave particular consideration to the material in relation to the assault occasioning bodily harm charge and confirmed his view that there was deprivation of capacity to know at the time of the charged offences. [9] I note that Dr Cook stated in his report that he was unable to support a finding of post traumatic distress disorder. However, when giving oral evidence, he indicated that, although he himself was unable to find sufficient evidence to substantiate that diagnosis, he had no doubt that sexual abuse had had a profound effect on the defendant’s emotional functioning. Dr Cook’s reservation about the diagnosis of PTSD was largely due to his inability to access information about the sexual abuse and rape suffered by the defendant, which he avoided exploring, as treating psychiatrist, because of the defendant’s reluctance to discuss it. He was therefore unable to access a good deal of the background material which Dr Beech was able to do, and his opinion ought to be seen in that light. Indeed, he did not reject Dr Beech’s diagnosis. [10] In relation to the question of deprivation, whilst Dr Cook stated in his report that there was substantial impairment of capacity, he fell short of opining that there was a deprivation of capacity. However, I note that Dr Cook accepted in giving evidence that his opinion as to deprivation may have been coloured by his perspective, as treating psychiatrist, over a period of years, during which he had assisted the defendant with some success with various learning strategies to deal with control and impulsiveness. [11] I note, however, that Dr Cook accepted that, even after that assistance, he considered the defendant to remain substantially impaired in her capacities and indeed that over the period from 2003 to 2008 there was a deterioration in respect of the defendant’s capacity for control. In those circumstances, I accept and prefer the evidence of Dr Beech, which I note is supported by the advice of the assisting psychiatrists, that the defendant was deprived of at least one relevant capacity at the time of the charged offences as a result of mental infirmity. [12] In relation to the question of future management, I consider that in this case a forensic order is appropriate. I note that the defendant’s mental health history is complicated with various diagnosis having been made. I note that the current situation with respect to her epilepsy is unclear. I also note Dr Beech’s report which chronicles the defendant’s self harm and her post traumatic distress disorder condition secondary to sexual abuse. The picture presented indicates that the defendant would benefit from psychiatric overview and Dr Cook’s evidence was that the defendant was assisted by psychiatric input in the past. [13] I would consider that a good deal of coordination will be required to properly address the breadth of the defendant's symptoms and condition. Additionally, it is important that the defendant continues to receive full support and input from Disabilities Services Queensland. I would not see the making of a forensic order as an opportunity for Disabilities Services Queensland to vacate the scene, as it were, and to disengage in having a high degree of involvement in terms of the defendant's care. -- 3 of 4 -- 4 [14] In the circumstances, I order that the defendant be detained in the Gold Coast Authorised Mental Health Service. I approve limited community treatment to commence immediately at the discretion of the treating psychiatrist on the conditions contained in the submissions from the Director of Mental Health with an additional condition that the defendant have no contact with the complainant. I direct that a copy of the transcript of today’s hearing be provided to the treating team; the adult guardian; Disabilities Services Queensland; and the legal representatives. -- 4 of 4 --