EK Re [2004] QMHC 20

MENTAL HEALTH COURT CITATION: Re EK [2004] QMHC 020 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF EK PROCEEDING NO: 0047 of 2003 DELIVERED ON: 21 September 2004 DELIVERED AT: Brisbane JUDGE: ASSISTING PSYCHIATRISTS: Wilson J Dr J F Wood Dr D A Grant FINDINGS: 1) That the defendant was of unsound mind at the time of the alleged offence; 2) that the defendant be detained as a forensic patient at The Park - Centre for Mental Health Authorised Mental Health Service for involuntary treatment and care; 3) that no limited community treatment be approved. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OF INCPACITY – where the defendant has been charged with arson – where expert psychiatric assessment recommends the defendant be detained in a high security facility – where there are currently no beds available at a high security facility Mental Health Act 2000 (Qld) schedule 2 COUNSEL: S Ryan for the defendant J Tate for the Director of Mental Health D Holliday 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] WILSON J: EK has been charged with arson on 23 September 2003. I am satisfied that at the relevant time he was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act. -- 1 of 3 -- 2 [2] This is a very serious offence. The defendant has been in custody. Having regard to the seriousness of the offence, his clear need for treatment and the clear need to protect the community, a forensic order must follow. [3] There are two issues with respect to the forensic order which require determination. One is the authorised mental health service to which he should be detained and the other is whether there ought to be any provision at this time for limited community treatment. The issues are not unrelated. [4] Because he has been in custody and because of the ongoing seriousness of his psychotic disorder, it is important that he be detained in a secure facility. [5] The Court has the benefit of a report by Dr Mark Schramm who is the psychiatrist presently treating him in the Prison Mental Health Service. That report was written on 13 September 2004. Dr Schramm said: "With regards disposal, I would say that, given the seriousness of the offence he should be admitted to the High Security In-Patient Service if he were to receive a forensic order. I would suggest, however, that if he remains calm and compliant in this unit that it may be only a relatively brief period before he could be transferred to a less secure facility, however I would not be asking for any limited community treatment at this time until such time that we have been able to have an assessment of his mental state in hospital. I would add that at the time of writing there may be difficulties in providing a bed at the High Secure Service. I would suggest that the physical security provided by a Medium Secure Unit would be more than adequate to contain this man if an interim placement in such a unit had to occur." [6] The draft order which has been put before the Court (and which has the support in this regard of the Director of Mental Health) is for his detention in The Park - Centre for Mental Health Authorised Mental Health Service. [7] There is a separate authorised mental health service, namely The Park High Security Program. The Court has been informed that presently there are no beds available in The Park High Security Program. I take it that there are no beds available in any other high security program in this State. The only other program is in Townsville. [8] HER HONOUR: Am I correct in assuming there are no beds there? MR TATE: Yes, no beds, your Honour. HER HONOUR: There are no beds there. Is that because it's not operational? MR TATE: Your Honour, I'm pleased to say it's not only operational but there are people in it, but there are no beds. HER HONOUR: All right, thank you for that. [9] The Court has to face that practical reality when it makes this order. It would be open to the Director of Mental Health to transfer the defendant from one authorised -- 2 of 3 -- 3 mental health service to another. In other words, if high secure detention were still deemed appropriate and a bed became available, the Director could transfer him there from The Park, and similarly if he were placed in High Security and that was no longer necessary, he could be transferred to The Park. [10] The Park - Centre for Mental Health Authorised Mental Health Service has within it a medium secure unit. It is not within the power of this Court to direct to which part of an authorised mental health service a patient is detained. That is a matter within the discretion of those responsible for running the authorised mental health service. [11] In all of the circumstances I am going to order his detention in The Park - Centre for Mental Health Authorised Mental Health Service. I make a strong recommendation that he be placed in a medium secure unit, and further I recommend strongly that if a bed becomes available in the High Security Program, due consideration be given to his transfer there. Of course, that decision would be made in the light of the circumstances pertaining at the time of the decision. [12] As for limited community treatment, the defendant's counsel sought approval of escorted leave on the grounds of the hospital at the discretion of the authorised psychiatrist. This was opposed by both the prosecution and the Director of Mental Health. I understood the advice of the assisting psychiatrists to be that given this defendant will be being transferred from prison to hospital, clinically it would be reasonable for him not to have such leave until after a period of initial assessment. [13] I was asked to approve this limited community treatment on the basis that it would facilitate the grant of such leave should it become appropriate in the view of the authorised psychiatrist with the passage of time - that this would save time and inconvenience in making an application to the Mental Health Review Tribunal to approve limited community treatment. However, the Court has been informed that the Director of Mental Health could herself make an application to the Tribunal and that the Tribunal could convene and deal with an application on about a week's notice. [14] In those circumstances I decline to approve any limited community treatment. -- 3 of 3 --