AKB, Re [2005] QMHC 5

MENTAL HEALTH COURT CITATION: Re AKB [2005] QMHC 005 PARTIES: APPEAL BY AKB AGAINST DECISION OF MENTAL HEALTH REVIEW TRIBUNAL PROCEEDING NO: 0203 of 2004 DELIVERED ON: 17 June 2005 DELIVERED AT: Brisbane HEARING DATE: 30 May 2005 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr J M Lawrence ORDER: Appeal allowed. The forensic order made on 19 May 1997 is revoked. CATCHWORDS: MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where appeal against Mental Health Review Tribunal decision to affirm a forensic order – where appellant no longer considered by psychiatric opinion to have a mental illness or intellectual disability – where risk of reoffending – whether a forensic order can be confirmed pursuant to ss 203 and 204 of the Mental Health Act 2000 (Qld) where a patient does not have a current mental illness or intellectual disability but represents a risk to the safety of others Mental Health Act 2000 (Qld), s 200(1), s 203(1), s 203(2), s 203(6), s 204(1), s 204(4), s 288(2), s 288(3), Schedule 2 Mental Health Act 1974 (Qld) s 33A(1) Coco v The Queen (1994) 179 CLR 427 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 COUNSEL: Mr D Shepherd for the appellant Mr J Tate for the Director of Mental Health Mr W Isdale for the respondent SOLICITORS: Legal Aid Queensland for the applicant The Crown Solicitor for the Director of Mental Health The Attorney-General of Queensland The appeal [1] The appellant, AKB, appeals against a decision of the Mental Health Review Tribunal (“the Tribunal”) made pursuant to s 203 of the Mental Health Act 2000 -- 1 of 9 -- 2 (Qld), confirming a forensic order made on 19 May 1997. That order, made by the Mental Health Tribunal of Queensland, the predecessor of this Court, detained the appellant in the John Oxley Memorial Hospital on a finding of unsoundness of mind in respect of one count of arson, two counts of negligent acts causing bodily harm and two counts of attempted arson. Over the last three years, treating psychiatrists at the Park - Centre for Mental Health, as it now is, have consistently provided their opinion that the appellant does not presently suffer mental illness or intellectual disability. [2] The issues raised by the submissions of counsel were whether the existence of mental illness or intellectual disability was a condition precedent to the continuation of the forensic order; and whether the appeal, relying on psychiatric reports some of which called into question the original diagnoses underlying the finding of unsoundness by the Mental Health Tribunal, amounted to an impermissible collateral attack on the Mental Health Tribunal’s decision. Review by the Mental Health Review Tribunal of forensic orders [3] Section 200 of the Mental Health Act requires the Tribunal to review a forensic patient’s mental condition at 6 monthly intervals or on application; it must conduct a hearing in order to carry out its review. Its powers and obligations in reviewing forensic orders are set out in ss 203 and 204 of the Mental Health Act. Those parts relevant for present purposes are as follows: “203 Decisions on review (1) On the review, the tribunal must decide to confirm or revoke the forensic order for the patient. (2) If the tribunal confirms the forensic order, the tribunal may decide to make 1 or more of the following orders— (a) an order that the patient have limited community treatment subject to the reasonable conditions the tribunal considers appropriate; (b) an order approving limited community treatment for the patient subject to the reasonable conditions the tribunal considers appropriate; (c) an order revoking an order or approval for limited community treatment for the patient; or (d) an order that the patient be transferred from one authorised mental health service to another authorised mental health service. ….. (6) In making a decision under subsection (1) or (2), the tribunal must have regard to the following— (a) the patient’s mental state and psychiatric history; -- 2 of 9 -- 3 (b) each offence leading to the patient becoming a forensic patient; (c) the patient’s social circumstances; (d) the patient’s response to treatment and willingness to continue treatment. (7) This section has effect subject to section 204. 204 Restrictions on review decisions (1) The tribunal must not do either of the following unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability— (a) revoke the forensic order for the patient; (b) order or approve limited community treatment for the patient. ….. (4) The tribunal must not order or approve limited community treatment for a patient mentioned in subsection (3) unless it is satisfied there is not an unacceptable risk the patient would, if the treatment were undertaken in the community— (a) not return to the authorised mental health service when required; or (b) commit an offence; or (c) endanger the safety or welfare of the patient or others.” The allegations of fire-setting [4] The allegations underlying the charges in respect of which the Mental Health Tribunal made the finding of unsoundness of mind are serious ones. The appellant is said to have set fires on three occasions in 1996. The first was at a St Vincent de Paul community hostel in Rockhampton, the second at a hotel in Emerald. On both of those occasions, the fires were fairly easily put out before they had taken hold; charges of attempted arson were brought. On the third occasion, the appellant was staying at a backpackers’ hostel in Rockhampton which was largely razed by a fire he allegedly started. Two fire fighters suffered serious burns in the incident; hence the charges of negligent act causing bodily harm. When interviewed, the appellant is said to have made additional admissions to lighting a fire at a circus, burning a caravan, and to burning down an old, empty house. [5] In 1997, the appellant absconded from the John Oxley Memorial Hospital and went to the Northern Territory. In 1999, he was charged with arson of an Alice Springs backpackers’ hostel. That charge did not proceed, and he was returned to the John -- 3 of 9 -- 4 Oxley Memorial Hospital in 2000. For the purposes of this argument, the appellant’s counsel accepts that the evidence supports a conclusion that he currently presents as a risk of further fire setting. The psychological and psychiatric evidence in the Mental Health Tribunal [6] The finding of the Mental Health Tribunal in 1997 was made on various psychiatric and psychological reports, not all of which are not now before me. From other sources, it seems that Dr A, a psychiatrist, diagnosed mild mental retardation and chronic paranoid schizophrenia. Dr B, an experienced forensic psychiatrist, provided a report in April 1997, in which he was rather more tentative. He noted that the apparent history of schizophrenia required clarification, although he was satisfied that the appellant suffered from mild mental retardation (with an estimated IQ level of between 50 and 55) amounting to a natural mental infirmity. Mr C, a psychologist, performed some psychometric testing and found that the appellant had a full scale IQ of between 61 and 71, which would put him in the significantly below average range. However there were environmental, social and educational factors affecting those results, which meant that that conclusion should be regarded with caution. Mr C expressed some doubt as to whether the appellant did meet the criteria of being intellectually disabled. The current psychiatric evidence [7] Dr B reviewed the appellant in September 2001. He agreed then with a more recent assessment of him as having a full scale IQ of 76 and being of borderline intelligence. He was uncertain whether the appellant’s previously given history of psychotic experience was reliable, and whether the past diagnosis of schizophrenia was valid. Dr B’s current diagnoses were of pervasive developmental disorder with adult anti-social conduct and pyromania and expressive language disorder. There was nothing to indicate any active mental illness, but the appellant was at risk of future fire setting. [8] Drs D and E, both treating psychiatrists at the Park, have provided regular clinical reports for the purpose of forensic order review since 2002, expressing their view that the appellant has no mental illness but rather suffers from an anti-social personality disorder. He has received no anti-psychotic medication since 2000, without experiencing any psychotic symptoms. His intellect, while borderline, is not such as to warrant his classification as intellectually disabled, and does not interfere with his functioning. His speech impairment may have led to past overestimation of his disability; it is now being treated, with some success, by a speech therapist. He remains at high risk of fire setting. [9] The view that the appellant poses a risk, but not because of any mental illness or intellectual disability, is supported by recent reports of three examining psychiatrists: Dr F (24 January 2005), Dr G (16 March 2005) and Dr H (28 April 2005). Dr F says there is nothing to indicate that the appellant’s current mental state is any different from the mental state associated with the fire setting; but the thinking behind his fire setting is inaccessible. The risk of future fire setting seems, Dr F considers, extraordinarily high. He does not think the appellant’s history of criminality and fire setting relates to the presence of any mental illness, but rather arises from his developmental difficulties and personality disturbance. Dr G considers the most likely factor in the appellant’s fire setting to be his anti-social -- 4 of 9 -- 5 personality disorder. It is possible that he had previously experienced brief psychotic phenomena, but there is no evidence that he is currently suffering from a mental illness. [10] Dr H takes issue with one of Dr G’s conclusions: while the appellant exhibits some anti-social personality traits, in context, a diagnosis of anti-social personality disorder is, she says, likely to be unreliable. She does not think the available evidence supports the conclusion that a psychotic disorder was the explanation for the appellant’s alleged offences in 1996. Dr H considers it likely that the sedative medication the appellant was receiving in 1996, together with his expressive language disorder, gave the impression that he was more intellectually impaired than he was. There is no evidence of mental illness or significant intellectual disability. The Mental Health Review Tribunal’s decision [11] The Tribunal, in a closely reasoned decision, outlined what it regarded as the proper approach to ss 203 and 204. It ought, it considered, to start from the basis that the Mental Health Tribunal had found unsoundness of mind in making the forensic order; there could be no debate about the correctness of that finding. The finding must have been made having regard to the three considerations prescribed in s 288(3) of the Mental Health Act: “(a) the seriousness of the offence; (b) the person’s treatment needs; (c) the protection of the community.” The Tribunal, in approaching its task under s 203(1), must also assess those considerations by reference to the factors set out in s 203(6). If the s 288(3) considerations had changed, it would be open to the Tribunal to decide that the order was no longer appropriate and revoke it. [12] The elements of community risk and the seriousness of the offences were unaltered. Although the appellant did not receive any treatment for mental illness, the purpose of a forensic order was identified in s 288(2) as detention for “involuntary treatment or care”. “Care” was defined widely enough in Schedule 2 to the Mental Health Act (as including the provision of rehabilitation support and other services) to encompass what the appellant was receiving. Applying the s 288(3) tests of seriousness of the offence, treatment needs and community protection, the tribunal was not satisfied that the situation supporting the making of the forensic order had changed so as to warrant its revocation. [13] In any case, the Tribunal observed, s 204(1) prohibited it from revoking the forensic order unless satisfied that the patient did not represent an unacceptable risk to the safety of himself or others, having regard to his mental illness or intellectual disability. The sub-section did not require the patient currently to suffer from such an illness. Rather, the necessity was that there be a connection between the condition which had produced the unsoundness of mind and the unacceptable risk. Otherwise, a patient might be given a defence of unsoundness of mind and then, soon after, seek to have the forensic order revoked by arguing that the Mental Health Court had erred in its finding. Whatever name was given to the condition that led to the Mental Health Tribunal’s finding that the appellant was of unsound mind, there was still “considerable uncertainty” about its nature and its effect on the fire setting behaviour. In those circumstances, the Tribunal could not be satisfied -- 5 of 9 -- 6 on the balance of probabilities that the condition did not contribute to the risk of re- offending. Section 204(1), therefore, prevented revocation of the forensic order. The submissions of counsel [14] Mr Shepherd, for the appellant, argued that the mental illness or intellectual disability to which regard must be had under s 204 was the patient’s current state of mental illness or intellectual disability. If that were not so, and it were permissible to assess risk in the absence of any current mental illness or infirmity, the provision would amount to preventive detention legislation; but such legislation required clear words. In this case there was no existing mental illness or disability, and s 204 had no application. The discretion conferred by s 203 required the reviewing body to have regard to “the patient’s mental state and psychiatric history”; again, the mental state referred to must be the current mental state of the individual. It would be contrary to the purposes of the Act to continue the confinement of a person who did not have any current mental illness or disability. [15] Mr Isdale, for the Attorney-General, submitted that the reports of Drs H, F and G expressly or implicitly constituted an attack on the finding of the Mental Health Tribunal. An appeal should not be allowed on such a basis. Even if such a collateral attack were not being mounted, that tendency in the reports was such as to impair the weight to be given to the opinions expressed in them, and the court should not act on them. Section 204(1) referred to the mental illness or intellectual disability found to exist by the Mental Health Tribunal. It was not open to the appellant to say that he was never mentally unwell, as the reports suggested. In any event, the court could not, having regard to the mental illness or intellectual disability found to exist by the Mental Health Tribunal, reach a firm satisfaction that the appellant did not present an unacceptable risk to the community. [16] Mr Tate, for the Director of Mental Health, did not make any submission as to the proper outcome of the appeal, but did make submissions as to the diversionary and remedial intent of the Mental Health Act. The Mental Health Review Tribunal reasoning [17] There are, I think, some flaws in the reasoning of the Tribunal. The first and most obvious difficulty is that the forensic order in this case was not made in the exercise of the discretion contained in s 288(2) of the Mental Health Act 2000, nor with regard to the factors set out in s 288(3). Instead, it was mandated by s 33A(1) of the Mental Health Act 1974, which required an order for detention, as a restricted patient in a hospital, of a person charged with an offence and found by the Mental Health Tribunal to be suffering from unsoundness of mind. Thus the tribunal’s notion that it could decide confirmation or revocation by reference to whether s 288(3) factors had changed or remained operative was based on a false premise. [18] But even if the forensic order had been made pursuant to s 288, for the Tribunal to proceed on the basis that it should also apply the s 288(3) considerations on the basis of the original finding of unsoundness, without regard to its current applicability, ignores the Tribunal’s function. Section 200(1) requires it to review the “forensic patient’s mental condition.” The whole point of the s 203 discretion is to recognise that the mental condition underlying a forensic order is not necessarily immutable. It does not amount to an attack on the original finding to consider -- 6 of 9 -- 7 whether the condition continues to exist; but the Tribunal seems to have avoided doing so here, by embarking instead on an examination of whether the s 288(3) factors had altered. In my view, the proper construction of s 203 is that the decision to confirm or revoke must be based on the factors set out in s 203(6), as applied to the current set of circumstances. To impose on those considerations a further requirement that there be some demonstrated change in the s 288(3) factors applied by the Mental Health Court or Tribunal is to place an unwarranted gloss on s 203. [19] I am unconvinced by the Tribunal’s proposition that there is still “considerable uncertainty” about the nature of the appellant’s condition, so that it is impossible to be satisfied that it does not contribute to the risk of re-offending. One does not, in fact, know whether the Mental Health Tribunal proceeded on the diagnosis of schizophrenia or of intellectual disability or both; if intellectual disability alone there is certainly room, given Mr C's opinion, for the severity of that condition to lessen with environmental change and attention to his expressive language disorder. But it serves nothing to speculate, and there is no confusion in the medical evidence now. The doctors reporting are as one in saying that the appellant presently suffers from neither mental illness nor intellectual disability. Construction of ss 203 and 204 [20] One cannot construe ss 203 and 204 without reference to the scheme of the Mental Health Act 2000. Chapter 1, Parts 2 and 3 set out its purpose and the principles for its administration. Section 4 identifies its purpose as: “…[T]o provide for the involuntary assessment and treatment, and the protection, of persons (whether adults or minors) who have mental illnesses while at the same time safeguarding their rights.” That purpose is to be achieved by the establishment of the Mental Health Review Tribunal and the Mental Health Court and provision for interstate transfers of patients; and, relevantly for present purposes, by “providing for the detention, examination, admission, assessment and treatment of persons having, or believed to have, a mental illness” (s 5(a)). Section 8, which sets out general principles for the administration of the Act, emphasises the recognition of human rights in relation to persons having a mental illness. Sub-section 12(1) defines “mental illness” as “a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”; sub-section 12(2) specifies that a person is not to be considered to have mental illness by reason only of any one of a number of matters, including intellectual disability and engaging in “anti-social behaviour or illegal behaviour”. [21] Those purposes and principles seem on their face to revolve around mental illness, to the exclusion of intellectual disability. Persons with intellectual disability are brought within the compass of the Act only where questions of criminal responsibility arise. The definition of “unsound mind” in Schedule 2 means “the state of mental disease or natural mental infirmity described in the Criminal Code, section 27”. Under ss 256 and 257, where commission of an indictable offence is alleged, and the person charged has “an intellectual disability of a degree [such as to raise] issues of unsoundness of mind, diminished responsibility or fitness for trial”, the question of his mental condition may be the subject of a reference to the Mental Health Court under s 257, and may warrant a finding of unsoundness of mind or unfitness for trial. On such a finding, the Mental Health Court must consider the -- 7 of 9 -- 8 making of a forensic order, by reference to the s 288(3) factors already set out. Thus it is possible that an intellectually disabled person, whether he has a concurrent psychiatric illness or not, will be detained in an authorised mental health service. [22] Notwithstanding the apparent exclusion of intellectual disability from those sections dealing with the Act’s purpose and underlying principles, they at least indicate that detention is not intended for any purpose but management and treatment of the mentally ill; and one must assume, by the extending effect of the definition of unsoundness, that that can include the intellectually disabled. Nowhere is there any declared aim of detaining those not mentally ill, much less of general preventive detention. Any such curtailment of the right of personal liberty would, of course, require clear, unambiguous language.1 And as Mr Tate observed in his submissions, the regime for periodic review of forensic orders is clearly directed towards treatment, not punishment. [23] Returning to the provisions immediately of concern, s 203 is subject to the constraint imposed by s 204. That necessitates a consideration of what “an unacceptable risk ... having regard to the patient’s mental illness or intellectual disability” means. On the construction adopted by the Tribunal that is a reference solely to the relevant condition on which the forensic order is based. On that construction, it would be sufficient to preclude revocation if the Tribunal were satisfied simply that a patient in respect of whom an unsoundness finding had been made was an unacceptable risk. [24] In my view, although one starts from the premise that the patient had the mental illness or intellectual disability in the first instance, one must also have regard to his current state; because an illness or disability which no longer exists can hardly give rise to a present risk. A construction which precludes detention in the absence of any existing illness or disability is, I think, consistent with the purpose of the Act. And there is nothing in s 204 which makes it incumbent on an applicant patient to show how it is that his condition has changed from what was found by the tribunal or court making the forensic order; although, of course, his case may be considerably more convincing if he does. [25] I do not think that the appellant’s argument carried any necessary implication that the original decision was wrong. Rather, as he was entitled to do, he invited attention to the expert opinion as to his current mental state. So far as some (but not all) of that opinion suggests that there was no mental illness or infirmity to warrant the 1997 finding of unsoundness, it is simply not to the point; that finding prevents consideration of any such question per res judicatam. What is to the point is that the evidence is uniformly and overwhelmingly to the effect that while the appellant does pose a risk to the community, that risk does not arise from any mental illness or intellectual disability. Section 204(1) can have no application. [26] Since I conclude that s 204 does not apply, the decision must be made with regard to s 203, sub-section (6) of which sets out mandatory but not exhaustive considerations. Does s 203, which does not expressly premise confirmation or revocation of the forensic order on a current finding of mental illness, permit 1 Coco v The Queen (1994) 179 CLR 427 at 437-438; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at para [30] per Gleeson CJ. -- 8 of 9 -- 9 confirmation of an order in a case such as the present? Section 203(6)(a) requires that regard be had to the patient’s “mental state”, a term which is undefined, as well as his psychiatric history. It is arguable that that might extend to a consideration of personality disorder. Sub-section (6)(b) requires attention to “each offence leading to the patient becoming a forensic patient”. That suggests that risk remains an important consideration. Sub-section (c), which refers to “the patient’s social circumstances”, is neutral. Sub-section (d) requiring consideration of “the patient’s response to treatment and willingness to continue treatment” certainly suggests that current mental illness is the issue. Schedule 2 contains this definition of the term, “treatment”: “ treatment, of a person who has a mental illness, means anything done, or to be done, with the intention of having a therapeutic effect on the person’s illness.” [27] More importantly, on a broader approach to construction, it is inconsistent with the purpose of the Act, manifested in Chapter 1, Parts 2 and 3 and in the forensic order review regime which is expressly concerned with the review of mental condition, to proceed on the basis that a person neither mentally ill nor intellectually disabled can be detained for community protection. I find myself in agreement, therefore, with the appellant’s submission that a forensic order should not be continued for a patient who has no existing mental illness or intellectual disability. [28] I allow the appeal and revoke the forensic order made on 19 May 1997. I note the appellant’s intention to co-operate in a gradual release into the community, which has a great deal to recommend it. -- 9 of 9 --