DLH Re [2004] QMHC 22

MENTAL HEALTH COURT CITATION: Re DLH [2004] QMHC 022 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF DLH PROCEEDING NO: 0054 of 2003 DELIVERED ON: 20 July 2004 DELIVERED AT: Brisbane HEARING DATE: 20 July 2004 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr JM Lawrence Dr JF Wood FINDINGS: 1. Finding that the defendant was suffering from unsoundness of mind, as described in schedule 2 of the Mental Health Act 2000, at the times of the alleged offences; 2. Order that the defendant be detained as a forensic patient in the Toowoomba District and Area Network Authorised Mental Health Service for involuntary treatment and care; 3. Approval of Limited Community Treatment on the following conditions: a. That the defendant reside at [address stated] or at such other address as is approved in advance in writing by the authorised psychiatrist; b. That the defendant attend an appointment at the Toowoomba Adult Mental Health Service, 21 Russell Street, Toowoomba, on a date and at a time to be advised by the Director of Mental Health; c. That she attend and cooperate in all appointments, examinations, assessments, treatment and in-patient care as the authorised psychiatrist may direct; d. That the defendant comply with the requirements of the authorised psychiatrist in relation to the taking of any prescribed medication or other treatment; e. That the defendant refrain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. -- 1 of 4 -- 2 CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant is charged with multiple counts of stealing – where defendant has organic personality disorder resulting from head injury – where defendant lacks insight into behaviour – where unsoundness of mind not in dispute – whether Forensic Order ought be made – where need for protection of community – whether Authorised Mental Health Service could provide detailed assessment by multi-disciplinary team. Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: J Devereaux for the defendant J Tate for the Director of Mental Health C Heaton 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: DLH has been charged with one count of stealing between 1 January 1997 and 31 December 1998, one count of stealing as a servant between 30 September 1999 and 3 April 2002 and 17 further counts of stealing between 30 September 1999 and 3 April 2002. [2] In 1995, DLH sustained brain injury in a fall from a horse. I am satisfied from the material before me that she has an organic personality disorder as a result of that head injury. I am further satisfied that she lacks insight into her difficulties. [3] On the material before me, I am satisfied that at the relevant times she was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000. Because her unsoundness of mind stems from organic brain injury, her condition is irreversible. [4] The principal argument before the Court was whether a forensic order ought to be made. The factors taken into account on this question are the seriousness of the offences, her treatment needs and the protection of the community. There is a large number of offences. They were committed while she was working as an enrolled nurse in a nursing home and the complainants, in the vast majority of cases, were patients of that nursing home. Clearly, this is a serious matter and it is a serious matter that the community, including vulnerable members of the community, should be protected from any recurrence. [5] The Court has the benefit of reports from Dr Jeff Thompson and Dr William Kingswell. In a report dated 6 November 2003, Dr Thompson raised five issues which I will set out: 1. Is it safe for her to practise as an enrolled nurse? 2. Is she fit for employment and, if so, under what circumstances and in what role? -- 2 of 4 -- 3 He said, "She did, I recall, tell me that she was working during the time that I saw her but I do not know the details of this." I interpose that I understand she is doing a little part-time work as an enrolled nurse now; 3. Is she fit to care for her child? I interpose she has an 11 year old. Dr Thompson went on, "I think this question needs to be asked although she does appear to have cared for the child during its most vulnerable period and I do not have any specific reason to believe that the child has not been adequately looked after."; 4. Does she need some form of supervision or assistance in her life such as might be offered if she was, for at least a period, under some form of case management from the Mental Health Service or some other organisation looking after persons with acquired brain injury? 5. Is there any significant impairment in her ability to care for herself or her financial affairs? Dr Thompson went on, "Once again, I have no particular evidence to offer suggesting that this is the case but I think the question needs to be considered." [6] The issue which has troubled me is whether an Authorised Mental Health Service could offer much to her and, ultimately, to the community, given the nature of her disability. [7] As Dr Lawrence, one of the assisting psychiatrists, pointed out, there has been a certain disorganisation and perhaps even a certain lack of cooperation in the history of this reference, and a lot is still unknown about her present everyday living circumstances. Dr Lawrence was clearly of the view that there should be a more detailed assessment by a multi-disciplinary team and I understood that view, in essence, to mirror the views of Dr Wood. [8] My concern that an Authorised Mental Health Service may not be able to offer what seems to be required was answered, at least in part, by Dr Thompson in the same report when he said this: "Therefore, in attempting to answer the question that you've put to me, as to whether or not I think that a forensic order should be made, then it would seem to me that if the Mental Health Court were to decide that she was either unfit for trial or of unsound mind, then I think that the best way of addressing these issues might be for a forensic order to be made, with the expectation that she would then be followed up by a Mental Health Service and that she would be required to comply with further testing and examination, including perhaps neuropsychological testing, home visits to assess the home situation, and perhaps social work and occupational therapy assessments. -- 3 of 4 -- 4 While I do not feel in any position at this stage to say, myself, whether or not she is fit to work as an enrolled nurse, I do think that if she is either convicted of these offences or if she's found to be unfit for trial or unsound mind, then the issue does need to be addressed." [9] In all of the circumstances, I am persuaded that a forensic order does have something to offer her and, ultimately, the community. How long the order remains in place will ultimately be a matter for the Mental Health Review Tribunal, which will reassess the situation in the light of up-to-date material from time to time. [10] I order that the defendant be detained as a forensic patient in the Toowoomba District and Area Network Authorised Mental Health Service for involuntary treatment and care. I approve limited community treatment to commence immediately on the following conditions: 1. That she reside at [address stated] or at such other address as is approved in advance in writing by the authorised psychiatrist; 2. That she attend an appointment at the Toowoomba Adult Mental Health Service, 21 Russell Street, Toowoomba, on a date and at a time to be advised by the Director of Mental Health; 3. That she attend and cooperate in all appointments, examinations, assessments, treatment and in-patient care as the authorised psychiatrist may direct; 4. That she comply with the requirements of the authorised psychiatrist in relation to the taking of any prescribed medication or other treatment; 5. That she refrain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. [11] I ask that a full transcript of today's proceedings be prepared. It will, of course, be available to the parties if they want it, and I authorise the release of a copy of it to the treating team. -- 4 of 4 --