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- Unreported Judgment
MENTAL HEALTH COURT
In the matter of Colin Jeffrey Florey  QMHC 12
23 October 2018
7 August 2018, 21 August 2018 and 5 October 2018
Dr EN McVie and
Dr ASB Davison (7 August 2018)
Dr SJ Harden and
Dr ASB Davison (5 October 2018)
Forensic Order made
L Falcongreen for the defendant
SJ Hamlyn-Harris for the Chief Psychiatrist
MP Le Grand for the Director of Public Prosecutions (Qld)
Legal Aid Queensland for the defendant Crown Law for the Chief Psychiatrist
The Office of the Director of Public Prosecutions (Qld)
- I heard a reference in this matter on 7 August 2018 and made a determination that Mr Florey was of unsound mind at the time of the offending. Therefore my order was that criminal proceedings for serious assault on a Corrections Officer, 5 February 2016, were to be discontinued.
- My view was that a forensic order ought to be made: Mr Florey has a serious illness into which he has little insight; becomes very violent when unwell, and was inadequately treated in prison prior to 5 February 2016, even though he was on an involuntary treatment order. A question arose at the end of the hearing on 7 August 2018 as to whether or not I had the power to make a forensic order which granted limited community treatment (LCT). It was said that the decision of Re M (No 2)1 was to the effect that LCT could not be granted to a person who was detained in a jail. If LCT cannot be granted, Mr Florey would need to be taken from jail and detained in the High Secure Service at The Park for the duration of the forensic order.
- It is necessary to say a little more about Mr Florey’s offending. He is serving a life sentence for murder, rape and grievous bodily harm. These offences were committed on
1 This was a decision of Justice Ann Lyons made on 30 September 2010. It remains unpublished because M has not yet been dealt with in the criminal courts for the offences the subject of that reference.
7 January 1990 and the conviction was on 15 January 1991. Mr Florey was first diagnosed with mental health illnesses after imprisonment. In 1995 he began to report voices and antipsychotic medication was commenced. He now has a diagnosis of paranoid schizophrenia which he “emphatically denies”.2
- He has an antagonistic relationship with the doctors who try to treat him in prison. He was on an involuntary treatment order well prior to the offending of February 2016, but in January 2016 he announced to his treating psychiatrist that he would no longer consent to the administration of depot antipsychotic by injection. Surprisingly, psychiatrists treating prisoners pursuant to involuntary treatment orders will not administer depot antipsychotic injections in jail if the prisoner does not consent. Because of this, the only remedy in these circumstances was to make arrangements for Mr Florey to be taken to the High Security Inpatient Service at The Park for the administration of an injection. This was particularly inconvenient because Mr Florey was in the Maryborough Correctional Centre. He was not taken to The Park High Secure Unit for the administration of depot antipsychotic medication, so he went without. He was at that time prescribed an oral antipsychotic as well, but there must be real doubts as to whether or not he took that medication. I very much doubt that he did: he does not believe he has an illness and administration of medication in prison is not rigorously supervised.3 Therefore from January 2016, Mr Florey was a man with a very serious history of violence and paranoid schizophrenia who, I suspect, was completely unmedicated.
- After the events giving rise to the charge of assault, Mr Florey was moved to a detention unit in prison and he accepted an increase in the dosage of his oral antipsychotic but continued to present as unwell. As a result he was taken to the High Security Inpatient Service at The Park on 1 March 2016 where he was given an injection of depot antipsychotic medication. He only remained at The Park for about two weeks. He was discharged on 16 March 2016 and was much more stable in his mental state once he returned to Maryborough Correctional Centre. However, at the beginning of September 2016 he once again began not to co-operate with his doctors and had to be taken to the High Security Inpatient Service at The Park for a week between 21 September 2016 and 28 September 2016 before he was once again returned to prison.
- The seriousness of Mr Florey’s illness; the seriousness of his violence when unwell, and his non-co-operation with, indeed opposition to, psychiatric treatment in prison mean that Mr Florey must be on a forensic order.
- As his history shows, Mr Florey does not require to be kept at The Park High Secure Unit to manage his illness, although it may be that he needs to be taken there from time to time for short periods of treatment. He can generally be managed in a custodial setting. He told the reporting psychiatrists that he prefers to be in a Correctional Centre, rather than at The Park. This Court is very familiar with the situation that there is competition for places at The Park High Security Inpatient program and that, unfortunately, not all patients who need treatment at that centre can be accommodated as soon as they need treatment. Mr Florey will be in prison or on parole for the rest of his life. It is likely that my forensic order will last for many years, perhaps, indeed, for life. However, it is quiteundesirable that Mr Florey be in The Park for the whole time he is on a forensic order. At present it is better that he be in jail, and it may one day be the case that he is in the community on parole.
2 Dr Bala report, 21 March 2018, p 5.
3 See transcript of Dr Tie’s oral evidence on 7 August 2018 as to these matters.
- The reference to this Court is under the Mental Health Act 2000 (the Act) and it is the provisions of that Act which govern whether or not I can make a forensic order which provides that Mr Florey have LCT in prison.4
- There are significant factual differences between Mr Florey’s situation and M’s situation. Mr Florey will be on a forensic order because I have found him unsound at the time of the alleged offending. By way of contrast, M was declared temporarily unfit. Section 288(4) of the Act meant that because of that declaration, he had to be the subject of a forensic order. There are some ambiguous provisions in the Act about whether or not in those circumstances a defendant is required to be an inpatient rather than someone who has LCT.5 In particular, s 540(1)(b)(i) of the Act provides that if a patient is found temporarily unfit for trial, as M was, he was “in the legal custody of the administrator of the patient’s treating health service”, it appears to the exclusion of the Chief Executive of the Corrective Services Department – see s 7(4) of the Corrective Services Act 2006. As Justice Ann Lyons remarked in M, the Act does not provide that where forensic orders are made in circumstances where serving prisoners are found unsound, or permanently unfit, the prisoners are taken out of the custody of the Chief Executive of the Corrective Services Department – . That is, for those prisoners there is no equivalent of s 540(1)(b)(i).
- I think it is right to infer a legislative intention that someone found temporarily unfit will be placed in the custody of an authorised mental health service and either be brought to a state of fitness, or demonstrate illness which shows they are permanently unfit in relation to the relevant offences. Either way, their being in the custody of an authorised mental health service is likely to be of relatively short duration. On the other hand, when someone is found permanently unfit for trial, or found to be of unsound mind, and a forensic order is warranted, it may be that that forensic order lasts for a long time. Certainly in Mr Florey’s case, I would anticipate that the forensic order would most likely last for the remainder of his life.
- While I certainly agree with Justice Ann Lyons’ view that the purpose of LCT is to (hopefully) facilitate “a graded transition from being an inpatient in a mental health service to being a member of the general community” –  – I do not agree with her conclusion that s 289 of the Act does not allow LCT to be granted so that the subject of the forensic order is to live in prison. There is no express provision to that effect. Justice Lyons drew an inference from the provisions of s 289. Particularly she thought that s 289(5) envisaged the subject of a forensic order living somewhere less restricted than the environment at the High Security Inpatient Service at The Park – see - of M. Life in prison is certainly restricted but it is not necessarily more restricted than life in High Secure at The Park. The High Secure facility at The Park has very restrictive detention facilities designed to manage and confine very dangerous patients. Life in a low secure part of a jail is no doubt less restricted than such confinement; indeed I suspect life in other parts of a jail is also less restricted.
4 In the 2016 Act there is a specific provision making it clear that a forensic order may be made which contemplates that the subject of the order will be released to a prison on LCT – s 199 Mental Health Act 2016.
5 s 288(4), s 540(1)(b)(i) and cf s 289(5).
- There will be times, as Mr Florey’s history indicates, when a prisoner with a mental illness needs more restriction and more protection than life in prison can provide. In those circumstances, a patient will be taken from prison to the High Secure area at The Park so that their mental illness can be more intensively and effectively treated.
- While most people subject to a forensic order will not be prisoners, in my view, s 289 of the Act is not so narrow that it cannot cater for someone like Mr Florey who, for most of the time, is not an unacceptable risk on a forensic order in jail, but who, from time to time, may need inpatient admissions at The Park High Secure program. In my view, I have power to make a forensic order with provision for LCT which will see Mr Florey living for the most part in prison, notwithstanding he may from time to time require inpatient admission, just as a patient living in the suburbs on a forensic order may from time to time require inpatient admission under the terms of a forensic order. That forensic order will no doubt remain in place, and be appropriately modified, to allow Mr Florey to live in the community, should he receive parole. Indeed it may well be a protective influence for him which is supportive of his attempts to gain parole.
- I make a forensic order for Mr Florey with full LCT.
- Published Case Name:
In the matter of Colin Jeffrey Florey
- Shortened Case Name:
 QMHC 12
23 Oct 2018