Amiet Re [2009] QMHC 18

MENTAL HEALTH COURT CITATION: Re Amiet [2009] QMHC 18 PARTIES: REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF ROYCE PETER AMIET PROCEEDING NO: 0075 of 2009 DELIVERED ON: 8 October 2009 DELIVERED AT: Brisbane HEARING DATE: 8 October 2009 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr A S Davison FINDINGS AND ORDER: 1. That at the time of the alleged offences the subject of the reference, the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 2. That the defendant be detained as a forensic patient at Royal Brisbane and Womens Hospital Authorised Mental Health Service; 3. Approval of limited community treatment at the discretion of the authorised psychiatrist on the conditions set out by the Director of Mental Health. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assault occasioning bodily harm and serious assault – where defendant suffers from schizophrenia – whether intoxication was a contributing factor to the mental state resulting in a deprivation of capacity – whether the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offences Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: K Prskalo for the Defendant W Isdale for the Director of Mental Health A Lossberg 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 [1] PHILIPPIDES J: The defendant, Mr Amiet, is charged with assault occasioning bodily and serious assault on 20 May 2007. The defendant has a long standing history of schizophrenia with admissions to hospitals in New South Wales and Queensland requiring treatment with depot medication. He had been on treatment for some three years. At the relevant time he had stopped using his medication and it seems that he had been off the medication for some considerable time after an ITO which he had been placed on was revoked. [2] Following the events in question, the defendant was on 6 June 2007 admitted to hospital, and his mental state was, on the basis of the medical material before the Court, clearly quite serious and reportedly he was in a catatonic state. He was subsequently placed on an ITO for some considerable period. [3] Both Dr Barnes and Dr Chalk who provided reports also gave oral evidence. Their evidence is to the same effect in terms of diagnosis. Both doctors considered the defendant at the relevant time to be suffering from a serious schizophrenic illness which was untreated, and both doctors considered that there was a deprivation of one of the relevant capacities. [4] Initially, Dr Barnes considered that the capacity of control to be the capacity in respect of which the defendant was deprived. Ultimately, in oral evidence, he fixed on the capacity to know that the defendant ought not do the acts in question as in fact being the capacity that was deprived at the relevant time. Dr Chalk appeared also to take the same view as to the capacity in issue being that of knowing. [5] The real issue before the Court concerns the question of intoxication. There is some evidence of the defendant having reported use of cannabis in the period before the events in question, however, there was no clear evidence as to precisely what quantities of cannabis had been taken, and exactly when they had been taken. There was a report to Dr Chalk of the defendant using about a gram of hydroponic marijuana every couple of days. He also reported to Dr Barnes a somewhat different account of using four to five cones every second day. [6] Dr Barnes discounted cannabis intoxication as a contributing factor to the mental state resulting in a deprivation of capacity. He maintained that view notwithstanding the medical report in different terms from Dr Chalk dated 4 June 2009, which he had the opportunity to consider. [7] In fact, Dr Chalk appears to have provided two reports both dated June 2009. The first report which was unsigned adopted the view that cannabis intoxication was not a contributory factor. That report states: "It would appear on the basis of the information available that [the defendant] was manifestly unwell". The statement was made after reference to the reported cannabis use. Dr Chalk went on to conclude: "In other words I am of the view that, whilst he was using marijuana, he was not, at the time of these offences, intoxicated under the meaning of the Act." To be fair to Dr Chalk, it appears that that was a draft report, and that, after he had the opportunity to view the CD of the medical reports, he amended his report and provided a fresh report in which he revisited the issue of intoxication. In that second report he opined that there was a significant cloud over the issue of amphetamine use at the relevant time. In this regard, he suggested that the defendant's behaviour in the watch house was perhaps explicable on the grounds of amphetamine use, and concluded that the issue of intoxication with a combination -- 2 of 4 -- 3 of marijuana or amphetamines could not be dismissed. However, Dr Chalk did not have an opportunity when he compiled the final report to view some of the material which arose from the watch house records. In relation to the question of amphetamine use, it seems that Dr Chalk was focusing on some passages in the hospital records where it was noted that a history had been given by the patient to a paramedic of having taken “ice” in the past week prior to the offences in question. [8] However, there was no evidence in any of the material before the Court of the defendant in fact having given such a history. Indeed, the actual emergency department patient record of 6 June records: "Patient? Been on ice for the past seven days. Denies taking any today." And it is pertinent to note also that the watch house records of 21 May 2007 simply refer to the notation or record the notation: "Noted amphetamine user." There is also a record on 22 May 2007 as follows: "? Heavy amphetamine use and intoxication. Difficult to assess." [9] I note that the defendant consistently denied using amphetamine in the period immediately prior to the offences in question, although he quite readily reported other past amphetamine use to both Dr Barnes and Dr Chalk. While it may be the case that the defendant had used amphetamine in the past, I am not satisfied on the basis of the material before the Court that a conclusion or finding should be made that at the relevant time, that is, in the period prior to the offences in question, the defendant had consumed or used amphetamine. There is simply no evidence to support the defendant having in fact given such a history to the paramedic. And indeed the medical observations in the hospital records, as noted in the questioning of Dr Chalk by Dr Davison, do not support amphetamine use at the relevant time. Moreover, Dr Chalk accepted in his evidence that the lack of any recorded history of intravenous drug use tended to diminish the prospect of the defendant having used amphetamine in the relevant period. Accordingly, in those circumstances I am unable to be satisfied that there was amphetamine use in the period immediately prior to the events in question, and that there was therefore any intoxication through amphetamine use as a contributing factor to his mental state. [10] In relation to the question of cannabis use, there was a report, as I mentioned, of cannabis use given to both Dr Barnes and Dr Chalk. It was a somewhat differing account, and Dr Barnes ultimately concluded, although he was somewhat ambivalent in aspects of his advice, that he did not consider that there was any cannabis intoxication operating in respect of the defendant’s mental state which resulted in deprivation of the capacity to know he would not do the act in question (which as mentioned was the only capacity he identified as pertinent). In relation to Dr Chalk's evidence, his evidence was at times contradictory, but he accepted that if the defendant had not been using cannabis for the 24 hour period prior to the events in question, it was less likely that cannabis was a contributory factor to the mental state resulting in deprivation. He also accepted that there was in fact no clear evidence as to when the defendant had used cannabis. I note that the opinion, with respect to intoxication, as presented by Dr Chalk was quite qualified and ultimately one which moved from the more emphatic view taken in the second report. [11] The advice from both the assisting psychiatrists is to favour the opinion of Dr Barnes that intoxication from amphetamines and/or cannabis was unlikely, on the balance of probabilities, to have resulted to any extent in the mental state causing deprivation of capacity. I consider that that position is the one that should be accepted. -- 3 of 4 -- 4 [12] In those circumstances, I find that the defendant was of unsound mind at the relevant time, in that he was suffering from a severe chronic schizophrenic illness with a deprivation of the capacity to know he ought not do the acts in question. [13] The next matter to be considered is whether a forensic order ought to be made. I note that both the reporting doctors took the view that a forensic order ought not to be made. I also note that the defendant is presently compliant with medication and insightful into his condition. However, it is of concern that the defendant has been in a similar position in the past. An ITO had been revoked after the defendant presented well and been compliant. Nevertheless, he eventually became noncompliant with, in this particular situation, serious consequences both to himself and a member of the public. [14] In those circumstances, I consider that a forensic order is warranted, and that an order ought to be made in terms of the submission from the defendant's legal representative. I order that the defendant be detained to the Royal Brisbane and Womens Hospital Authorised Mental Health Service. I approve limited community treatment to commence immediately on the conditions contained in the submission which include a residency requirement and a condition that the defendant attend upon Dr Barns today at 4 p.m. and also conditions relating to follow-up appointments, refraining from using alcohol and illicit drugs and complying with directions of the authorised psychiatrist. I also note that there is a requirement that the defendant not drive a motor vehicle unless permitted to do so by an authorised psychiatrist. -- 4 of 4 --