B, Re [2007] QMHC 29

MENTAL HEALTH COURT CITATION: Re B [2007] QMHC 29 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF B PROCEEDING NO: No 0265 of 2006 DELIVERED ON: 20 November 2007 DELIVERED AT: Brisbane HEARING DATES: 12 and 13 November 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr F T Varghese FINDINGS AND ORDERS: 1. The defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence. 2. The defendant is fit for trial. 3. The proceedings are to be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with grievous bodily harm of her infant daughter – where the evidence indicates that the defendant was suffering from a major depressive episode at the relevant time – where expert opinion differed as to whether the defendant’s major depressive disorder was associated with psychotic features – where expert opinion differed as to whether the defendant was deprived of the capacity to control her actions at the time of the alleged offence – whether the defendant was deprived of the relevant capacity – whether the defendant was of unsound mind at the time of the alleged offence – whether the defendant is fit for trial COUNSEL: A J Kimmins for the defendant W Isdale for The Director of Mental Health B G Campbell for The Director of Public Prosecutions SOLICITORS: Price & Roobottom Solicitors for the defendant Crown Law for The Director of Mental Health The Director of Public Prosecutions (Qld) [1] PHILIPPIDES J: The defendant is charged with grievous bodily harm on 10 June 2006, when she was 20 years of age, arising out of events concerning her then two month old baby daughter. The matter of the defendant’s mental condition at the time of the alleged offence has been referred to this Court. -- 1 of 8 -- 2 [2] Before the Court were a police field interview and extensive medical records and reports, including reports from Dr Curtis, Dr Sundin and Dr Hogan. The circumstances of the alleged offence [3] On the morning of 10 June 2006, after having bottle fed her baby, the defendant took the child to the change table in her bedroom of her house. The baby was irritable and started to cry and scream. The defendant described the crying as an ear-piercing, distressing crying. She put the baby on the table and started to change her, but the child continued to scream even more. The defendant reported that she “snapped” and hit the baby with an open palm along the child’s jaw line. She could not remember how many times she hit the child. She reported to one of the examining psychiatrists feeling that the baby was “deliberately crying, having a go at me, saying I was incapable of providing what she wanted, her needs”. To another she reported , “I thought she hated me”. She also admitted that she shook the baby for about one or two seconds and then put her back into the cot and she was still crying. The defendant said that she did not remember shaking the child all that hard. [4] The defendant told Dr Sundin that after these events, the defendant’s husband came into the room and at this point she “stopped watching [her]self; the penny dropped [she] burst into tears”. The defendant’s husband picked up the child and tried to calm her down by showering her. After the shower the baby quietened down. Bruising to the baby’s face was apparent and the couple applied ice to it. [5] The following morning, 11 June 2006, the baby started to twitch involuntarily and the defendant and her husband took the baby to Pindara Hospital Accident and Emergency Unit. She was transferred to the Gold Coast Hospital with cerebral contusions and extensive bruising to her face. The baby was then transferred to the Mater Children’s Hospital where it was found that she was suffering from cerebral oedema. She was placed in an induced coma on ventilation and was treated in the Intensive Care Unit for nine days. As a result of her persistent seizures, the baby was required to be placed on two anti-epileptic medications and suffered ongoing effects. [6] The defendant and her husband were interviewed by police at the Gold Coast Hospital. The defendant admitted to hitting her child, but did not mention shaking the child until one of the doctors later asked. She said that she had no idea until then what shaking a baby could do. Background [7] The defendant is the eldest of two children. There is some family history of psychiatric illness with one of the defendant’s maternal aunts suffering from a Bipolar Disorder for many years, requiring hospitalization at times and ongoing medication. In 2000, when the defendant was in Grade 9, she suffered from a depressive episode in the context of difficulties with her peer group and engaged in acts of self-harm by cutting her wrists. She was seen by her General Practitioner for supportive therapy and eventually recovered. [8] After leaving school, the defendant attended college. She married at the age of 18 and went back to her studies, but stopped soon after upon becoming pregnant. -- 2 of 8 -- 3 [9] Both the defendant and others described the defendant developing symptoms of depression in the latter stages of her pregnancy and especially after the birth of her daughter. The birth experience was a difficult and disappointing one for the defendant. The labour was induced nine days early because of problems with high blood pressure. An epidural was required but proved difficult due to anatomical difficulties with the defendant’s spine. The child required a forceps delivery and an episiotomy was performed. After delivery, the baby was placed on the defendant’s chest and the defendant reported that her memory was of the baby screaming repeatedly. [10] The defendant had had difficulty breast feeding and switched to bottle feeding in the third week. She developed mastitis and became ill with septicaemia. The baby developed a gastric upset with persistent vomiting. Initially, it was thought that the baby was suffering from pyloric stenosis. She was admitted to the Pindara Hospital, but subsequently an infection was diagnosed. The defendant found this period stressful and developed the view that the nurses were judgmental of her and that they considered she was too young to have a baby and that they were rude to her. She continued to have difficulties with the baby projectile vomiting, but did not go back to the hospital because she said she could not face the nurses. [11] The defendant expressed feeling increasingly isolated. She felt that her mother and mother-in-law were critical of her mothering ability and her ability as a homemaker. The defendant reported being sleep deprived, having an appetite disturbance, and feeling fearful. The defendant reported becoming increasingly afraid at night. The defendant’s husband was at university by day and generally had a work shift at night. She reported that she slept with the lights on and that she felt there was a presence of someone in the house watching her and started to believe she was at risk of home invasions. Reports of doctors prior to June 2006 [12] The defendant had contact with a number of doctors before the events in questions. Dr Davis, paediatrician, saw the defendant and her husband on 27 May 2006 and considered that they were appropriately attentive and concerned for the welfare of their daughter. On 30 May 2006, they were seen by Dr Pincus, paediatrician, who observed that they were somewhat defensive as a couple, which related to their young age and their determination to prove to their relatives that they were able to cope. He did not believe the defendant to be significantly depressed, but felt that she had not made the transition to motherhood and needed some extra help, support and guidance. The couple was seen on 5 June 2006 by Dr Bartels, who noted that there were no overt symptoms suggestive of depression. Dr O’Dowd, obstetrician, noted on 26 June 2006 that there was nothing in the defendant’s presentation that had caused him to be concerned about her mental state. Treatment with Dr Roberts [13] The defendant was not receiving any psychiatric care prior to the events of 10 June 2006, although thereafter she was referred to Dr Roberts, consultant psychiatrist, who first saw the defendant for weekly psychotherapy between 22 June 2006 and January 2007. -- 3 of 8 -- 4 [14] Dr Roberts compiled notes of the psychotherapy. In her notes of the initial assessment, Dr Roberts recorded that the defendant stated that she felt like her child was “crying for no reason or having a go at [her]”. Dr Roberts described the defendant as presenting with a low grade mood disturbance and feelings of “numbness”. Dr Roberts described the defendant as having a flat affect and possibly being dissociated, but found no evidence of psychosis. Dr Roberts noted that the defendant had difficulty thinking emotionally and expressing emotions “as it results in her feeling exposed and vulnerable”. She noted the defendant as having projected feelings of persecution onto her child. Dr Roberts opined that the defendant’s very strained relationship with her parents and in-laws over 2006 was a significant factor in the chain of events leading to the alleged offence, with the defendant feeling isolated and alone. Dr Curtis [15] Dr Curtis saw the defendant on 16 June 2006 and 1 September 2006. He diagnosed postpartum-onset of a major depressive episode and a personality disorder. Dr Curtis noted mood lability and preoccupation with infant well-being, with the intensity of concern ranging from simple over-concern to frank delusional preoccupation. He observed that in the period leading up to the events in question, the defendant became preoccupied that her child was seriously ill. He noted that the defendant’s “maternal attitudes towards the infant were highly variable and included disinterest, fearfulness of being alone with the infant, overly intrusiveness that probably inhibited adequate infant rest”. [16] To Dr Curtis the defendant reported feeling pervasively sad and felt she had nothing to look forward to. She became increasingly insecure about her mothering role and told her husband that the baby would be better off without her as a mother. The defendant engaged in excessive self-blaming and self-criticism. The defendant felt more and more panicky as time progressed and her fatigue symptoms became more severe. [17] Dr Curtis recorded that the defendant’s husband reported that, after the birth, the defendant’s personality seemed to change with mood swings; either very high or very low with no middle ground. Dr Curtis accepted that such mood swings were not necessarily consistent with major depression. However, Dr Curtis concluded that at the relevant time the defendant was suffering from a disease of the mind, namely postpartum-onset of major depressive episode, with psychotic features of a persecutory type directed at both her environment and the child. He was also of the view that the defendant’s reported signs and symptoms were indicative of “a psychotic level of depressive mood disorder”, finding evidence of an “actual mental content with a vague delusional type.” In his opinion the depressive episode was accompanied with “severe overwhelming anxiety and even panic attacks”. [18] Dr Curtis noted the presence of severe ruminative and delusional thoughts about the child was accompanied by a seeming projection onto the child of adult motives and manipulative behaviours and the defendant attributing unrealistic awareness to the infant child, for example that the child would not bond to the defendant and preferred her husband, would intentionally disturb the defendant while she was having time to herself and was, by her conduct, showing the defendant up. In his view, the persecutory nature of the defendant’s attitudinal stance prevented her from -- 4 of 8 -- 5 obtaining any timely help and her psychotic projections onto her baby resulted in her harming her child. [19] In his report, Dr Curtis expressed the view that the defendant was as a result of her mental illness deprived of all of her capacities. However, when giving oral evidence he modified that view to one that the only capacity of which the defendant was deprived was the capacity to control her acts, the deprivation arising as a result of a psychotic depression. Dr Sundin [20] Dr Sundin interviewed the defendant on 9 February 2007. Dr Sundin concluded that the defendant met the diagnostic criteria for Major Depressive Disorder, single episode, moderately severe, but without psychotic features. She also diagnosed prominent avoidant and paranoid personality traits. [21] Dr Sundin also recorded in her report the difficulty the defendant had in parenting, especially with feeding her child, and that the defendant developed the belief that her child would respond and feed better off her husband. In this regard the defendant reported to Dr Sundin, “I felt a little bit like I was incapable. I felt I’d let [the baby] down that I couldn’t do it”. Dr Sundin observed that the defendant described herself as feeling very isolated and lonely. Dr Sundin noted the criticism the defendant felt directed to her by her mother and mother-in-law for having failed to persist with breastfeeding and saw it as another of the internalised messages that added to the defendant’s sense of personal failure. The defendant said of her family, “I did feel like everyone was watching me, I had to live up to their expectations”. When assessed on the global assessment of functioning scale by Dr Sundin, the defendant scored 61 to 70 and was considered to be still suffering some mild symptoms, but generally functioning reasonably well. [22] In recalling the events in question to Dr Sundin, the defendant said that at the time, she felt like she was watching herself and that “it was like something snapped”. The defendant reported to Dr Sundin that in the weeks leading up to 10 June 2006, “there was an element of paranoia, I was sleeping with all the lights on”. She said that she became concerned that noises in the roof might mean that someone was in the house. However, Dr Sundin did not consider that there was a delusional intensity to those beliefs, but rather saw them as reflecting an anxiety of varying intensity in an isolated and fearful person. [23] In her report, Dr Sundin stated: “From an ego-psychology perspective, the personality defences which I found present in this lady were from both the neurotic and primitive defence spectrum. I found evidence of displacement, isolation of affect and projective identification. These primitive defences are particularly relevant to the abnormal thought content that [the defendant] developed in the postpartum period when she developed a range of illogical ideas that her two month old child was capable of an adolescent level of reasoning and reaction.” [24] In reflecting on how the Major Depressive Disorder affected the defendant’s capacities, Dr Sundin observed that the defendant had developed an abnormal set of cognitions by which she was attributing mental states and cognitions to her daughter -- 5 of 8 -- 6 wholly inconsistent with her age and stage of development. However, Dr Sundin did not view these projections as having a psychotic element. She saw them as a not altogether uncommon reflection of the defendant’s depression, personality type and isolation. Dr Sundin concluded in her report: “Given [the defendant’s] immaturity and presence of primitive defence mechanisms, she appears to have become overwhelmed by the demands of looking after a young infant; to the point that on 10 June 2006, that when the child once again burst into loud crying that she suffered a state of depersonalisation during which she assaulted the child. To quote [the defendant] ‘I snapped’. This behaviour appears to have continued on for at least several minutes until interrupted by the arrival of her husband. The experience of depersonalisation is an alteration in the experience of self, leading to feelings of being unreal or detached from one’s own body. It is often accompanied by a complaint of lack of all feelings and sensory experiences. Transient depersonalisation occur frequently in normal persons, especially in states of fatigue, sleep deprivation and during acute distressing situations. Depersonalisation frequently occurs in association with depressive disorders, anxiety disorders and in some personality disorders. It is not of itself a psychotic experience.” [25] Thus, while Dr Sundin considered that the defendant was experiencing a Major Depressive Episode in the setting of significant psycho-social stressors and an immature personality style, she did not consider that the defendant was suffering from a psychotic illness. Although Dr Sundin accepted that the defendant was significantly impaired in her capacity to control her actions, she was unable to conclude that the defendant was absolutely deprived of any one of the relevant capacities and therefore did not support a defence of unsoundness of mind. Dr Hogan [26] Dr Hogan saw the defendant on 14 September 2007. He also diagnosed major depression with dependent personality disorder traits, including issues of immaturity. Dr Hogan agreed with Dr Sundin that the depression was not accompanied by psychotic features. He also saw the defendant’s fears of home invasion in terms of anxiety, rather than delusional beliefs. Nor did he see the defendant’s projections as to the baby having adult motivations and sentiments as other than those of a person experiencing great stress. [27] However, Dr Hogan noted that the defendant had also become increasingly disorganised, forgetful and unable to concentrate. He assessed the defendant on the global assessment of functioning scale at the time of the alleged offence as being less than 40, in the context of the major depression, which intensified post-natally, with increasing stress being experienced in parenting and difficulty sleeping, eating and associated lack of energy. [28] Dr Hogan considered the defendant’s depression was of such a severity as to have deprived her of the capacity to control her actions. In this regard, Dr Hogan placed some emphasis on the un-premeditated and impulsive nature of the defendant’s -- 6 of 8 -- 7 conduct and her lack of memory as to the details of her conduct at the time in question. He stated in his report: “The offence itself seems to have been an impulsive once [sic], which occurred when the mother struck the child at a time when she was screaming at high pitch. There is no suggestion that she planned this. She has told me, and others, that she has no real recollection of how many times she actually hit the child although she has readily admitted doing this. The field record of interview taken soon after she was admitted to hospital also confirms this view. At times of high stress patients can often dissociate from reality and not be fully aware of their actions. This dissociation can be partial or complete. The mental state examination Dr Roberts performed twelve days after the time of the assault shows her to be mildly depressed and detached. Dr Roberts refers to her as being in a state of trauma. In a correspondence approximately a month later Dr Roberts, again, refers to her mild depressive state.” Conclusion [29] Both assisting psychiatrists tended to the view that the defendant was suffering from a Major Depressive Disorder at the relevant time, although they noted difficulties with that diagnosis, given the observations of the various doctors who had seen the defendant prior to the events in question and also the observations of Dr Roberts recorded in her clinical notes over an extended period from 22 June 2006. Dr Varghese was nevertheless satisfied that there probably was a major depression of at least moderate intensity and Dr Lawrence placed reliance on the fact that the three examining psychiatrists were all agreed as to the presence of a Major Depressive Disorder. Having considered the clinical evidence, I am satisfied that the defendant was suffering from a Major Depressive Episode at the relevant time. [30] I note, as mentioned already, that neither Dr Hogan nor Dr Sundin, considered that the defendant’s Major Depressive Disorder was associated with psychotic features. Dr Lawrence agreed with that view. Dr Varghese also shared the views of Drs Sundin and Hogan that the beliefs of home invasions and fearing catastrophe were not delusional, but common depressive cognitions that did not have the quality of a fixed unshakeable belief required of a delusion. As to the other subject matter of psychosis identified by Dr Curtis, concerning the defendant’s projections in respect of her child, Dr Varghese’s observation was that the projections described were common in attachment disorder and also common as depressive cognitions in the context of a Major Depressive Disorder. In the circumstances, I am not persuaded that the defendant’s Depressive Disorder was of such a degree of severity that psychosis was present. [31] As to the question of deprivation of the capacity for control, which was the only capacity raised as relevant on the material, both assisting psychiatrists favoured the view of Dr Sundin over that of Drs Curtis and Hogan. Both assisting psychiatrists considered that, while the defendant had lost control at the relevant time and “snapped”, there was no deprivation of the capacity for control. Significant factors in the view expressed by the assisting psychiatrists, were the transient nature of the loss of control and the lack of psychotic intensity to the depression experienced by -- 7 of 8 -- 8 the defendant. I also find persuasive the opinion of Dr Sundin which the assisting psychiatrists favoured. I note the comments of the assisting psychiatrists that the defendant’s conduct was, in their view, explainable in terms of a loss of control by an individual suffering from major depression who, acting impulsively, lashed out in frustrating circumstances. [32] The relevant issue for determination is of course not one of loss of control, but rather deprivation of the capacity for control. I am not persuaded that the impulsive nature of the conduct in question and the defendant’s difficulties in memory should be seen as an indicator of deprivation of the capacity for control and I note Dr Lawrence’s advice in that regard. While I consider that the evidence indicates, as Dr Sundin conceded, that the defendant was significantly impaired in respect of the capacity for control, I am unable to conclude that there was a deprivation of that capacity. Orders [33] I find that the defendant was not of unsound mind at the relevant time. The evidence indicates that the defendant is fit for trial. Accordingly, the proceedings will continue according to law. I grant leave to the parties to use the reports in further proceedings. -- 8 of 8 --