CMM, Re [2005] QMHC 27

MENTAL HEALTH COURT CITATION: Re CMM [2005] MHC 027 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF CMM PROCEEDING NO: 0080/04 DELIVERED ON: 12 October 2005 DELIVERED AT: Brisbane HEARING DATE: 11 October 2005 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr J M Lawrence FINDINGS AND ORDER: 1. The defendant was not of unsound mind as that term is defined in the Mental Health Act 2000 (Qld), Schedule 2 at the time of any of the alleged offences. 2. The defendant is permanently unfit for trial. 3. A forensic order is made with limited community treatment subject to conditions. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with various sexual offences – where the defendant has been diagnosed as having intellectual impairment and behavioural disorders – whether defendant of unsound mind at the time the alleged offences occurred, within the meaning of the Mental Health Act 2000 (Qld), Schedule 2 – whether, at the time of the alleged offences, the defendant was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not do the act – whether the defendant is fit for trial Criminal Code Act 1899 (Qld), s 27 Mental Health Act 2000 (Qld), 288, Schedule 2 COUNSEL: Ms S Ryan for the defendant Mr J Tate for the Director of Mental Health Mr D Mackenzie for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health The Director of Public Prosecutions -- 1 of 6 -- 2 [1] I have made certain findings and orders on this reference and now give my reasons. [2] CMM was charged with one count of indecent treatment of a child under 12 years on 7 December 2002; two further charges of the same offence on 18 December 2002; and charges of indecent treatment of a child under 12 years, sexual assault and deprivation of liberty on 16 March 2005. All of the allegations concern conduct of a sexual nature, with a younger sibling and two other children; all were under the age of 12 at the relevant times. CMM was born in September 1988 and has just turned 17. He was 14 at the time of the earlier alleged offending. On an unknown date a child protection order was made in respect of CMM, making the Chief Executive of the Department of Child Safety his guardian until he turns 18. [3] In May 2003 CMM was examined by Mr Hatzipetrou, a psychologist, who administered various tests. He concluded that CMM was functioning within the mentally deficient range of intelligence. He had the vocabulary and capacity for abstract reasoning of a seven year old and his literacy and numeracy were equivalent to that of a Year One child. It was unlikely that he would be fit to plead. Mr Hatzipetrou recommended that substantial support, supervision and sexuality and human relations education be provided to CMM. [4] The offences allegedly committed in 2002 were the subject of a reference by the District Court to this court on 25 May 2004. (That reference was irregular 1 , but was rectified in May 2005 by a further reference from CMM’s legal representatives.) Following the reference, CMM was examined by Dr Michael Beech in October 2004. Dr Beech considered that CMM suffered from mild mental retardation and attention deficit/hyperactivity disorder which were likely to have impaired his ability to reason, make appropriate decisions and control his actions, but had not deprived him of any relevant capacity. His intellectual impairment, however, rendered him unfit to plead. [5] CMM was also seen by Professor Barry Nurcombe who gave a report dated 13 November 2004. His diagnosis was of moderate mental retardation and oppositional defiant disorder. There was, he said, no evidence that CMM was of unsound mind at the time of the alleged offences, but he regarded him as unfit for trial. At that time CMM was faring well in his current foster care arrangement after a series of unsuccessful placements. [6] The matter came before this court in April 2005. At that time, however, CMM had been charged with a further three charges of indecent treatment of a child under 12 years, sexual assault and deprivation of liberty allegedly committed on 16 March 2005. In late 2004 his foster care placement had broken down after an alleged assault by CMM on one of the foster parents. From January 2005 he was accommodated in a rental property under the supervision of youth workers. A reference to notes from Department of Child Safety files says that “the youth worker placement was problematic primarily due to the instability of workers supporting CMM and the ad hoc organisation of the placement due largely to the placement being organised in urgent response to the foster placement breakdown”. There was a hiatus in CMM’s supervision one afternoon. He went to the house of a friend of his mother where it is alleged he committed the offences against her five year old daughter, who had also been the subject of one of the earlier charges. He 1 No plea had been entered, as required by s 61 of the Mental Health Act 2000, at the time of the reference. -- 2 of 6 -- 3 was arrested, and on 17 March 2005 was placed in the Brisbane Youth Detention Centre, where he has remained ever since. [7] This second set of offences was the subject of a further reference. Dr Beech reported again, noting that while psychometric testing placed CMM in the moderate mental retardation range, he functioned at a somewhat higher level. Consistently with his earlier report, Dr Beech expressed the view that CMM suffered from mild intellectual impairment as well as an attention deficit disorder with hyperactivity and conduct disorder. Again, he did not think that CMM suffered from unsoundness of mind at the relevant time but considered him permanently unfit for trial. [8] The matter was next before the court on 31 May 2005. The expert evidence being uniform in its effect, the parties were of one view as to the appropriate findings: that CMM was not of unsound mind at the time of commission of the offences, but is permanently unfit for trial. Those are the findings I have made. The difficulty presented by the case has been as to the arrangements for CMM’s future care and supervision. [9] At the Brisbane Youth Detention Centre, CMM was referred to the Child and Youth Forensic Outreach Service. That service prepared a report dated 25 May 2005 which recommended the development of an appropriate plan for him, with the cooperation of a number of different agencies. On 31 May 2005 a social worker with the service, Ms Withington, gave evidence. She identified CMM’s immediate needs as those of accommodation, supervision, monitoring and emotional, physical and therapeutic support, and his longer term needs as relating to employment and recreation. There were presently no safe options available in the community for CMM. It could take up to three months to recruit and train care staff, of whom nine would be needed, to care for and supervise CMM. With the release of information her service would conduct a comprehensive risk assessment to begin the process of management planning and resource allocation. The Department of Child Safety would be a key agency, although Disability Services Queensland would take over its role when CMM turned 18. [10] The matter was adjourned to 26 July 2005 for further review. By this time a report dated 21 July 2005 had been prepared by the Child and Youth Forensic Outreach Service. The report noted that while in the Brisbane Youth Detention Centre CMM had been involved in a number of incidents, some involving physical violence, in some of which he had been perpetrator, in others victim. Having identified a number of risk factors which suggest that CMM is at high risk of repeating violent behaviour and sexual offending, the report recommended his accommodation in a secure setting with constant supervision by two male youth workers to ensure he did not abscond. Recommendations were also made for a structured program of daily activities and a behaviour management plan. [11] The court also had placed before it on 26 July an undated report from Mr Keep from the Department of Child Safety. It advised that officers of the Department had met representatives of Queensland Health, Disability Services Queensland, Education Queensland and Family Planning Queensland, and had been looking, with limited success, for what is described as a “service provider”. It was hoped that Link In, a community-based organisation, would accept a referral. The report referred to priorities being “focussed on providing an alternative to detention if at all possible -- 3 of 6 -- 4 and safe to do so”. That comment rather suggests a misperception that preventative detention is available in the case of someone who cannot be tried but presents a risk. [12] On 26 July, Ms Swan, the child safety officer responsible for CMM, gave evidence. She had had a meeting with Link In on 21 July and discussed the prospect of that agency’s setting up a plan for CMM’s accommodation and supervision. Link In, she said, had the advantage that it was a disability service that Disability Services Queensland used; when CMM turned 18 he would become a Disability Services Queensland client. The matter was adjourned to 5 August 2005 to review the progress of arrangements with Link In. [13] On 5 August 2005, Mr Keep, the author of the earlier report, attended to give evidence. He said that he had been advised that a funding package for a three month period, with “the principle of ongoing commitment” had been approved. Link In had accepted the referral, but required a six to eight week time period to recruit and train staff. Meetings would take place with Disability Services Queensland and Child and Youth Forensic Outreach Service to assist with the formulation of behaviour management plans for CMM, and Mr Keep intended the following week to contact the Housing Department to seek accommodation. [14] Mr Keep spoke of the goals of the arrangement as meeting accommodation and monitoring needs so that the court “would be provided with an option to detention”. Again he seemed to be operating under a misapprehension that detention itself could be an option for a person permanently unfit for trial. If CMM were to be immediately released, Mr Keep said, he would be placed in a motel room with two youth workers. There was no secure facility available for him within the community. He made the valid point that his department had no clear legislative authority to restrain CMM or prevent him from absconding or offending. [15] As a result of that review, an order was made requiring fortnightly advices from the Department of Child Safety as to progress. Those were duly, and helpfully, furnished by Mr Keep and Ms Shah, another departmental officer. A support plan was prepared by Link In. On 16 September Ms Shah advised that accommodation had been found: a four-bedroom home which was not in proximity to schools or child-care centres. But she raised this concern: a letter had been intercepted from CMM to his younger sister which indicated his intention to engage in sexual activity with her. He had also said that he would abscond once removed from detention. Ms Shah expressed concern that the child’s mother was unlikely or possibly even unwilling to protect the child. She pointed out again that the department had no means of containing CMM. [16] On 10 October 2005, Ms Shah provided a further report. It was accompanied by a detailed case management plan from Link In with a list of youth workers and their qualifications and experience, the funding details for a placement and support package, a behavioural support plan and a contact roster providing for contact between CMM, his mother and his siblings. [17] At the hearing on 11 October 2005, Mr Sean Jennings, one of the Link In youth workers, gave evidence that he had had contact with CMM in 2002 and had more recently resumed that contact while CMM has been in detention. Mr Jennings spoke enthusiastically of the proposed program and the team of workers engaged to look after CMM. He emphasised the need for stability and consistency for CMM; -- 4 of 6 -- 5 there was a clear association between his aggressive behaviour and uncertainty in his life. Mr Jennings expressed the hope that some conditions would be set to give guidance in CMM’s management. As to what could be done about his absconding, Mr Jennings could see no alternative but to follow him and advise the local police; there was, he said, no power to restrain him physically. [18] This case exemplifies a two-fold problem which the court encounters in cases of persons suffering from intellectual disability such as to render them either of unsound mind or permanently unfit for trial, without accompanying mental illness. The Mental Health Act 2000 makes the forensic order under s 288 the mechanism for management of persons in respect of whom findings of unsoundness or unfitness are made, but it entails detention in an authorised mental health service for treatment or care, with provision for limited community treatment where appropriate. The obvious difficulty is that a mental health service can offer little by way of treatment of a person who has no mental illness and can provide little by way of supervision to such a person in the community. But the Act provides no means of supervision specifically adapted to the circumstances of intellectually disabled persons who present a risk of re-offending. To compound the problem, the carers provided by either the Department of Child Safety or Disability Services Queensland have, it seems, no clear statutory power to restrain such an individual when he or she seems likely to abscond or re-offend. [19] The second difficulty is an associated, practical one: the absence of existing, structured living arrangements for persons in this position. This case throws that problem into sharp relief, with the alternatives given to the court in August of CMM remaining in a youth detention centre or being placed in a motel with a social worker. It is difficult to see how either alternative could meet the obligations of the Chief Executive of the Department of Child Safety as CMM’s guardian. There has never been any dispute about CMM’s condition. All parties – his legal representative, the Director of Public Prosecutions and the Director of Mental Health – have been in agreement since this matter was before the court in May as to his permanent unfitness for trial. He has however spent almost five months since then, and seven months in all, in a youth detention centre for want of any alternative placement. The accommodation and care arrangement now provided has assured funding only for a period of three months. It is, of course, a matter for those with expertise in this area but the case does seem to illustrate a need for permanent, specialised residential facilities and clear legislative guidelines for the management of persons in CMM’s position rather than ad hoc funding packages. [20] In this case, having regard particularly to the risk CMM poses to others, I have concluded that it is necessary to make a forensic order. That is the only means under the Mental Health Act of providing some overarching supervision and setting some conditions by which CMM must abide. But it is unfortunate and inappropriate that should the living arrangement break down, the default position is that CMM be placed in a psychiatric hospital. There is, of course, an obligation on the Chief Executive of the Department of Child Safety to act in CMM’s best interests, which would not very readily be met by recourse to confinement in a secure psychiatric unit. And it does seem that there is considerable good will and determination to make the arrangements succeed, on the part of both the departmental officers and the Link In workers immediately involved in CMM’s management. -- 5 of 6 -- 6 [21] For the reasons given in this judgment, I made the findings pronounced on 11 October, that CMM was not of unsound mind at the dates on which the offences were allegedly committed and that he is permanently unfit for trial; and made a forensic order with limited community treatment, the conditions of which, to be read in conjunction with his current Behavioural Support/ Management Plan, require, in summary, that: 1. CMM reside at an approved address, which he may not leave, or have visitors to, without authorisation; 2. CMM follow all reasonable directions of the youth workers and the statutory authority presently responsible for his care; 3. CMM’s contact with his brother and parents be supervised; 4. CMM’s contact with his sister be supervised at all times and in accordance with the directions of the statutory authority responsible for his care; 5. CMM have no contact with the two other complainants; 6. CMM attend appointments relating to his care and treatment as directed. -- 6 of 6 --