BDF, Re [2006] QMHC 25

MENTAL HEALTH COURT CITATION: Re BDF [2006] QMHC 25 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF BDF PROCEEDING NO: No 0086 of 2005 DELIVERED ON: 6 February 2006 DELIVERED AT: Brisbane HEARING DATE: 6 February 2006 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr D A Grant FINDINGS AND ORDER: 1. There is a reasonable doubt that the defendant committed the offences; 2. The defendant is temporarily unfit for trial; 3. The defendant is to be detained at the Toowoomba District and Authorised Mental Health Service. Limited community treatment is approved on certain conditions. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with indecent dealing with a child under 16 – where defendant suffers from chronic dysthymic disorder – where defendant at risk of self-injury or suicide because of borderline personality disorder – where defendant suffers from major depression – whether defendant fit for trial Mental Health Act 2000 (Qld), s 268, Schedule 2 COUNSEL: P Farmer for the defendant J Tate for the Director of Mental Health S Vasta for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health The Office of the Director of Public Prosecutions [1] HOLMES J: BDF is charged with three counts of indecent dealing with a child under the age of 16, those offences allegedly occurring on 1 January 1996. [2] It is a situation in which he disputes the allegations, and it is the sort of situation in which the proper outcome is for me to have a reasonable doubt as to the commission of those offences, and not proceed to any finding on unsoundness. -- 1 of 2 -- 2 The real issue here is as to fitness for trial and more specifically as to whether BDF is fit to endure his trial with severe adverse consequences to his mental condition unlikely. [3] Dr McIntyre has seen him in the distant past, in 1993 and 1994 as a patient but has reported, for the purposes of these proceedings, on his condition. He describes him as suffering from chronic dysthymic disorder but says that it is really a matter of personality traits which would lead to his conclusion that BDF is at risk should he face a trial. He considers that he suffers from a borderline personality disorder which makes self-injury likely. Dr McIntyre did seem to agree that if proper conditions could be set up including inpatient care while BDF faced any trial, the risk of those things occurring would be very much reduced. [4] But what does seem to add an extra dimension, and I agree with Dr Grant's observations on this, is the view of Dr Aghanwa, the treating psychiatrist, that not only are there questions of personality traits but there is a major depression present. [5] Dr Aghanwa, like Dr McIntyre, agreed that strategies could be put in place both leading up to a trial and during a trial to reduce risk; but I do take his evidence as meaning that BDF is at particular risk at this time if he were to go to trial at this time because of his depression. Dr Aghanwa described BDF's condition, and in particular his suicidality, as waxing and waning. [6] On the whole, I think I ought to prefer his view as to BDF's condition, given his immediate contact with BDF, on a question like this, and come to the conclusion that BDF is presently unfit for trial but that that unfitness is not of a permanent nature; and, to boot, once his condition improves somewhat, there are a number of means which will assist considerably in reducing any residual risk. But my conclusion at present is that BDF is unfit for trial and that unfitness is not of a permanent nature. [7] I order that BDF be detained in the Toowoomba District and Authorised Mental Health Service. I approve limited community treatment in the nature of more than overnight limited community treatment to commence immediately on these conditions: that he reside with his mother, or at a place approved in advance, in writing by the authorised psychiatrist; that he attend all follow-up appointments and inpatient care as required by the authorised psychiatrist; that he comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment; that he refrain from using alcohol and illicit drugs; that he co-operate fully in random medical tests for the detection of those substances as required by the authorised psychiatrist; that he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist; and that any contact he has with children should be under the supervision of a responsible adult. -- 2 of 2 --