Re MAB[2015] QMHC 10

MENTAL HEALTH COURT

1. [1]
   A reference in relation to MAB came before this Court.  He is a 35 year old man who has an IQ in the extremely low range.  My decision on the reference was that there was a reasonable doubt about whether MAB had committed the offence and that therefore I should not make a finding as to soundness.  I found that MAB was permanently unfit for trial.  I made a forensic order (disability).  I reserved the question of what I ought do about concerns raised by a reporting psychiatrist that MAB had been, and was being, taken advantage of by his family.  Because this Court has limited statutory jurisdiction, this question turned on my power to do things necessary and convenient when otherwise exercising my jurisdiction.
2. [2]
   In the course of hearing the reference I considered a report dated 3 August 2015 from Dr Alexandra Simpson, who examined MAB pursuant to s 422 of the Mental Health Act 2000 (the Act) as an independent Court-appointed expert.  I note that Dr Simpson is an experienced psychiatrist who reports regularly enough to the Mental Health Court.  For the purpose of making her report, Dr Simpson spoke to MAB for two hours and 15 minutes and also interviewed MAB’s mother.
3. [3]
   Dr Simpson outlines MAB’s family history.  [Redacted].
4. [4]
   The family circumstance seems to have been that when, perhaps 10 years ago, the parents moved [away], the two sons moved into, or continued to live in, the family home.  MAB’s younger brother now lives in that home with his wife and their young daughter.  Until the time of the offending which is the subject of the reference to this Court, MAB lived there too.  He allegedly touched the three year old daughter inappropriately.  I made no finding about soundness on the reference because I was not convinced that any of the factual material as to the alleged offending was reliable, having regard to the medical evidence about MAB’s IQ and ability to give a reliable history, either to the psychiatrists who examined him for the purpose of this Court proceeding, or to the police.  MAB’s mother told Dr Simpson that she had doubt as to whether or not MAB had actually touched his niece inappropriately.  She told Dr Simpson that she thought that MAB was “caught in the middle” and said that he had told her that he did not do it on three or four occasions.  The only other version came from the three year old girl.
5. [5]
   Since the alleged offending it appears that MAB has lived in a donga at a mining camp.  He apparently pays $100 per week rent from his disability pension.  He does some odd jobs around the camp.  His disability pension is apparently $700 per fortnight.  The financial information as to what he spent his money on was not particularly clear in the version he gave to Dr Simpson (see page 3 of her report).
6. [6]
   MAB’s mother told Dr Simpson that MAB managed his own money but required assistance from his parents [remotely].  She told Dr Simpson that MAB would run out of money, and that she and her husband would put money in his account when that happened.  She told Dr Simpson that MAB pays the car registration (he has the use of the family car), as well as the rates for the house in which his brother lives and insurance on the house in which his brother lives.  MAB’s mother thought that her son was not able to cook and that he ate cereal and takeaways, as well as re-heating food in a microwave.
7. [7]
   MAB’s mother told Dr Simpson that the family home in [redacted], which the parents used to own outright, had been transferred into MAB’s name.  This was apparently well prior to the offending.  She told Dr Simpson that both her sons had purchased the house from their parents.  It is not clear how MAB might have done this, unless his disability pension (or wage when he worked) was applied to this purpose for a considerable time.  Dr Simpson says as to this:

“The legal arrangements for this seem to be slightly odd.  [MAB’s mother] reported that the house is currently in [MAB’s] name only as he has fully paid off his half of the house and his younger brother [C] is also paying off half of it.  Although he is currently residing there, it is not actually in his name.  I formed the impression that the parents had ‘sold’ the house to both their sons in order to fund their charitable works in [redacted].”

8. [8]
   Dr Simpson said this at the conclusion of her report (page 8):

“I am also concerned that there is a substantial conflict of interests from the perspective of both [MAB’s] parents and his brother.  It appears that [MAB] has an enduring and significant cognitive disability and I would question whether he has the capacity to manage his own financial and legal affairs.  As far as I can ascertain he is the sole owner of the house that belonged to his parents as he has purchased it from them, although that information came from his mother and it seemed he was unaware of it.  Despite this he is paying out money to rent a donga in a caravan park whilst his brother and his family reside in the home that [MAB] owns.  As a consequence of this, I would speculate on the veracity of the charges and whether there is financial advantage to be had by [MAB] being charged.  Furthermore I would also speculate that [MAB’s] parents have already taken financial advantage of him by getting him to purchase the house from them in the first place to fund their overseas living expenses. 

I do not believe that [MAB] is able to understand the nature and consequences of his current financial arrangements.  I consider that [MAB] needs urgent representation by an adult guardian that is not a member of his immediate family with respect to financial and legal matters, who can also act at his advocate.  Notwithstanding the outcome of the charges I believe that [MAB] is at risk of substantial financial disadvantage without external support.” (my underlining).

9. [9]
   I have no way of investigating Dr Simpson’s concerns.  They are serious on their face.  Initially I thought that an independent guardian ought be appointed for MAB but upon reflection and research I came to the view that there ought to be an investigation by the Public Guardian pursuant to s 19 of the Public Guardian Act 2014 (Qld):

“The Public Guardian may investigate any complaint or allegation that an adult –

1. (a)
   is being or has been neglected, exploited or abused; or

2. (b)
   has inappropriate or inadequate decision-making arrangements.”

10. [10]
    Counsel acting for MAB, instructed by Legal Aid, submitted I ought not take this course.  It was said that there had not been a complaint or allegation within the meaning of s 19 of the Public Guardian Act 2014.  In my view, it is clear Dr Simpson’s report contains an allegation that MAB has been exploited and that he has inappropriate decision-making arrangements.  Further it was said by counsel appearing for MAB that it was not necessary to investigate Dr Simpson’s concerns because he had been “instructed” by MAB’s parents that they were loving parents, concerned for their son’s care.  The submission was made that they ought to be the first “port of call” for guardianship.^[1]  This is in circumstances where counsel could not obtain any meaningful instructions from MAB himself.^[2]  It really could not be the case that MAB’s parents could give instructions on the question which is the subject of these reasons.  Whether Legal Aid felt confident to take their instructions in the matter generally, given the nature of the allegations that have been made, is another matter.
11. [11]
    The only question is whether I have power to refer Dr Simpson’s concerns to the Public Guardian, or direct one of the parties to do so.  Counsel for MAB submitted I did not have that power, so did counsel for the Director of Mental Health.

Director of Forensic Disability

12. [12]
    My first thought was that I ought to direct the Director of Forensic Disability to either seek the appointment of an independent guardian or apply to the Public Guardian for an investigation.  In 2011 Parliament enacted the Forensic Disability Act 2011 (FDA).  At the same time consequential amendments were made to the Act.  One of those amendments was to change the definition of party.  The definition was changed to include the Director of Forensic Disability as a party to a reference heard at the Mental Health Court, “if that director elects to become a party to the proceeding”. 
13. [13]
    The Director of Forensic Disability elected to be a party to this reference on 12 November 2014; filed material, and appeared and made submissions on the hearing of the reference.  The Director of Forensic Disability is created by the FDA.  Section 87 of the FDA provides that the Director has a function to ensure the protection of the rights of forensic disability clients – s 87(1)(a).  A forensic disability client is defined at s 10 of the FDA as an adult with an intellectual or cognitive disability for whom a forensic order is in force for the person’s detention in the forensic disability service.  The forensic disability service is defined by s 95 of the FDA as a place declared by regulation.  Regulations define the service as a 10 bed unit near Ipswich.^[3]  So, while the word “service” is used in the name of the forensic disability service, in fact it is not a service; it is a place.  Thus, while the FDA runs to some 160 odd sections, together with some schedules, it appears that the ambit of responsibility of the Director of Forensic Disability is very limited.  That Director has no statutory function to protect MAB’s rights.  Indeed, I cannot see that the Director has any function in relation to MAB at all.  I cannot see that the Director could be an appropriate person to pursue Dr Simpson’s concerns.  The situation would be otherwise if MAB were a forensic disability client as defined.  I reserve for another day the question of whether or not the Director of Forensic Disability has any ability to elect to be a party to a matter where, as in this case, there is no sensible prospect that the defendant is ever going to be detained in the forensic disability service, or be liable to be detained in that service.^[4]  It is difficult to see what interest the Director could have in the matter before the Court.
14. [14]
    In any event, I cannot see that the Director’s having elected to appear in this matter, and having been allowed to do so, could give him power to act to protect MAB’s interests when that power is not given pursuant to statute.  Thus I am convinced that I should not direct the Director to apply to QCAT or the Public Guardian.

Forensic Order (Disability)

15. [15]
    Section 288 of the Act deals with the making of forensic orders.  The Mental Health Court may make a forensic order if it finds that someone is unfit for trial and the unfitness is of a permanent nature.  The decision as to whether or not to make a forensic order is dealt with by s 288(4) of the Act which provides that in deciding whether or not to make such an order the Court must have regard to the seriousness of the offence with which the person is charged; the person’s treatment needs or care needs, and the protection of the community.
16. [16]
    Section 289(1) of the Act gives this Court jurisdiction to allow the patient to live in the community under a forensic order, “subject to the reasonable conditions the court considers appropriate”.  Section 289(4) provides that the Court must not approve the subject of a forensic order living in the community unless it is satisfied that 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.”  That is, in deciding whether to approve treatment in the community and what are reasonable conditions for the patient living in the community, regard is to be had to the patient’s own interests and, in particular, the patient’s safety.  Lastly, s 289(6) provides that in making those decisions the Court has regard to, inter alia, “the patient’s social circumstances”.
17. [17]
    In this case my forensic order (disability) was to detain MAB to the [redacted] Authorised Mental Health Service upon conditions.  The conditions are as follows:

“Limited Community Treatment

1. That the patient must comply with the requirements of the authorised psychiatrist in relation to the care as provided under the treatment plan, including engagement in disability support services provided by the Department of Communities, Child Safety and Disability Service.
2. That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist.
3. That the patient abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist.

More than Overnight

4. That the patient reside at the below address or a place approved in advance in writing by the authorised psychiatrist:

  [Address omitted].

5. That the patient must attend the below appointment with a psychiatrist and all follow up appointments and inpatient care as required by the authorised psychiatrist:

  [Details omitted].”^[5]

18. [18]
    It is the practice of this Court that the conditions of an order such as this one are made having regard to (inter alia) a submission on behalf of the Director of Forensic Disability.  That submission is based on information the Director gleans from the Department of Communities as to what services are available to any particular individual for whom a forensic order (disability) will be made.  The Court usually receives a report outlining what the Department of Communities perceives the defendant’s needs to be and what services it intends to provide. 
19. [19]
    In this case the Department of Communities gave the Court a report dated 29 July 2015, which assessed MAB’s intellectual functioning, his adaptive functioning, his medical history and his current living arrangements.  That information was consistent with that detailed by Dr Simpson.  The report concluded that MAB had very limited support of any kind, and was at risk living in the community.  The report said that Disability Services would, once a forensic order was made, provide six hours a week support to MAB to assist him to “develop life skills and encourage and support participation within the community”.
20. [20]
    Other reports, such as that from Dr Simpson pursuant to s 422 of the Act, also inform the conditions which are placed on forensic orders made by the Mental Health Court.  Sometimes the Assisting Psychiatrists suggest medical treatment or investigations which become conditions of forensic orders.  In this way the Court tries to take into account treatment and care needs, which are pre-conditions to the making of a forensic order (s 288(4)), in setting the conditions of treatment in the community, having regard to those factors in s 289.

Power to do Things Necessary or Convenient

21. [21]
    Pursuant to s 384(1) of the Act, the Court may do all things “necessary or convenient to be done for, or in relation to, exercising its jurisdiction.”  That section does not give the Court more jurisdiction than the statute otherwise does,^[6] but if a matter is within the Court’s jurisdiction, the Court has power to do acts convenient in relation to its exercise of jurisdiction. 
22. [22]
    At s 4 of the Act is a statement of purpose.  It is said that the purpose of the Act is to provide for the involuntary assessment and treatment, and the protection, of persons who have mental illnesses while at the same time safeguarding their rights and freedoms.  Although that purpose mentions only those with mental illnesses, I think it is a fair inference that the same purpose is apparent from the legislation in relation to persons such as MAB who, by reason of natural mental infirmity, are before the Court.  At s 8 of the Act are some general principles which govern the administration of powers under the Act and amongst them are, at s 8(1)(a), the principle that there ought be recognition of every person’s right to respect for his or her human worth and dignity as an individual and at s 8(1)(d), the principle that powers under the Act are to be used bearing in mind that, to the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance.  Of course these are general statements and the Act deals with many and varied subject matters, the Mental Health Court is but one of those. 
23. [23]
    At s 267 the Mental Health Court’s jurisdiction on the hearing of a reference is firstly to decide whether or not the person the subject of the reference was of unsound mind at the time of the alleged offence and, after that, in circumstances set out at s 270(1), decide whether the person is fit for trial.  If the person is found to have been of unsound mind, or if they are not fit for trial, the Court has jurisdiction to make a forensic order and to impose conditions on that order if it allows limited community treatment – see above, ss 288 and 289.  In deciding whether to make a forensic order, the Court must consider, inter alia, the “care needs” of the person who will be subject to the order – s 288.  In deciding what conditions to impose by the forensic order, the Court must have regard to, inter alia, the safety of the subject of the order, having regard to their intellectual disability, and their social circumstances – s 289(4) and (6).
24. [24]
    As assessed by Dr Simpson and the Department of Communities (reports referred to above) MAB is at risk living independently in the community.  His life is marginal – such basic matters as his shelter and food are far from optimal.  His finances are meagre and unreliable while he remains in charge of them himself.  The stability and quality of social circumstances such as these are basic to his ability to live and function in the community without being at risk himself or posing a risk to others.  The care and assistance to be provided by the Department of Communities and the supervision ensured by the forensic order, aim to reduce this risk.  If MAB is entitled to live in a house he owns, or is entitled, for instance, to receive a repayment of money improperly taken from him, his social circumstances could be improved and stabilised.  This would be independent of the assistance provided by the Department and any supervision under the forensic order, but it would greatly assist the aims and objectives of the forensic order.  In these circumstances it seems to me that I have power to refer this matter to the Public Guardian and request that the Guardian consider investigating pursuant to s 19 of that Act.  It seems to me that the connection between my jurisdiction to make and condition a forensic order, and my referral of the matter to the Public Guardian is close and direct enough that the referral is something which is convenient to be done in relation to exercising my jurisdiction to condition a forensic order, having regard to the purposes of my jurisdiction to condition a forensic order, as discussed above.  Accordingly, I shall ask the Registrar to send a copy of these reasons to the Public Guardian.
25. [25]
    I will add as a further footnote to this decision that by 9 September 2015 the Mental Health Service to which MAB is detained under his forensic order had applied for an interim guardian to be appointed by QCAT and that dialogue between QCAT and that health service was ongoing as to whether the guardian ought to be interim or permanent.  Having been informed of that, I will direct that the Registrar send a copy of these reasons to the Registrar of QCAT.  I think the same reasoning as expressed above applies to my power to make that direction.