Re KBC[2016] QMHC 2

MENTAL HEALTH COURT

1. [1]
   This is a reference of offending which occurred on 2 April 2014.  The defendant is a young woman (born in 1997) who at the time was residing in the New Farm Clinic because of her mental health problems.  She left the clinic at night and was observed by police officers in New Farm Park with some broken glass.  I accept she probably had this with a view to harming herself.  The officers approached KBC and she responded with distress, and ultimately violence against them.  She is charged with one count of serious assault and two counts of assault or obstruct police.  One of the police officers was seriously hurt in this encounter.
2. [2]
   I heard this matter on 16 and 18 December 2015.  Four respected psychiatrists gave evidence, as well as having previously given reports to the Court.  The case throws up difficult philosophical questions of both law and medicine, concerning what will be regarded as a “mental disease” for the purposes of the Mental Health Act 2000 (Qld) and indeed s 27 of the Criminal Code.  In particular this case raises whether or not a personality disorder, dissociative identity disorder (DID), can be regarded as a disease of the mind.
3. [3]
   In what I thought was a thoughtful remark, counsel for KBC submitted that in times past a person presenting with DID may well have been described as having a disease of the mind.  Further, that in times to come, when medical science is more advanced, such a person may be properly described as having a disease of the mind.  My task of course is not to address matters at that philosophical level, but to apply well-established concepts of law and current established medical concepts.  Doing that, I think that it is clear KBC did not have a disease of the mind at the time of the offending, and is not entitled to a defence of unsoundness.  I made that decision and consequently directed that the criminal matters proceed according to law on 18 December 2015.^[1]  What follows are the reasons for my decision of 18 December 2015.

Childhood History

4. [4]
   KBC displayed significant emotional and behavioural difficulties from infancy.  Her first contact with Child Mental Health Services was at the age of five years.  By then she had documented oppositional behaviour from the age of two or three years; separation anxiety; a fear of the dark, and a history of nannies resigning because she was “too difficult”.  KBC currently reports (eg to a treating psychiatrist, Dr Chung) that she has no memories prior to the age of six years.
5. [5]
   KBC has reported over many years that, as a child, she had around 30 imaginary friends, which she could see and hear, and that one of those friends was named LBC.  While the other friends died away, LBC’s voice never did.  Dr Grant summarised matters:

“They gradually disappeared by the age of 10, but the one that persisted was the one called [LBC], who was a bratty, bad mouthed, critical little girl who stayed with her.  And then she describes increasingly, sort of, [LBC] being in – in her mind, commenting on her – making – chattering and carrying on, but she knew it was her own thoughts.  They became increasingly critical and nasty until eventually [LBC] was saying things and suggesting things that [KBC] found morally unacceptable and [she] started to see [LBC] as – as separate to her, as ego-dystonic, if you like.” – t 1-76.

6. [6]
   There was one note in one hospital record which described behaviour of the same kind attributed to LBC, as attributed to SBC.  This was a nursing note.  None of the psychiatrists who gave evidence was of the view that this note was significant, and some expressed the view that they thought it was probably a mis-transcription by the nurse.^[2]  I do not regard it as significant.
7. [7]
   KBC has an extensive history of treatment as an in-patient, and out-patient treatment, with both public and private mental health services.  She has reported repeated violent rapes in the family home by a 17 or 18-year-old neighbour when she was aged between 11 and 12 years.  No charges have ever resulted from these allegations, in fact I am not certain the police were ever involved.
8. [8]
   She has a history of serious self-harm and serious suicide attempts.  She has been diagnosed with various personality disorders.  She has never been treated with high dose antipsychotics or mood stabilisers.  She has a long history of reporting periods of “lost time” where she suffers either total, or almost total, amnesia.  These events have occurred over many years and there has never been any clear identification of what triggers them.
9. [9]
   The charges with which I am concerned are the first criminal charges ever brought against KBC.  However, it has been the case that in the past she has made statements to the effect that bad behaviour on her part was carried out by LBC. 

The Night of the Offending

10. [10]
    The alleged offending occurred around midnight.  Police information was that KBC was noted missing from the clinic from about 11.00 pm.  Two female officers were looking for her specifically, and were aware that she was absent from the clinic and distressed – that is, the meeting in the park was not a chance encounter and there was nothing in the police behaviour which might have provoked the response they met.
11. [11]
    On the night of the offending KBC has a memory up until about 9.00 pm, but then has almost no memory until about noon the next day.  Nonetheless she accepts that she was the person who did the acts the subject of the charges.  All the psychiatrists accepted that her amnesia was genuine. 
12. [12]
    Prior to leaving the clinic KBC was writing in a diary which was an exhibit before me.  The last entry in that is noted as having been made at 10.00 pm.  The handwriting is to my observation no different to the handwriting in other entries in the diary.  The entry is written by KBC, as KBC, in the first person.  Indeed, on one reading, it might acknowledge that LBC is part of KBC: “I am bad, my head is bad, my emotions are bad, [LBC] is bad, everything about me is bad.”  The substance of this last entry is of desperate distress.
13. [13]
    In the ambulance which collected KBC from New Farm Park and took her to the Royal Brisbane Hospital, KBC “kept yelling out that her name was ‘[LBC]’”. – statement of Constable Amy Flynn.^[3]

Borderline Personality Disorder

14. [14]
    All the reporting psychiatrists thought that KBC had borderline personality disorder. 
15. [15]
    Professor Nurcombe described this condition as follows:

“Well, technically speaking, borderline disorder is – personality – is not diagnosed until the age of 17 or 18.  But, in fact, the elements of the condition one can see emerging before then, as they were, I believe, with [KBC] when she was 12, 13 years of age.  This is a group of personality difficulties associated with an unstable sense of identity, unstable personal relationships, a tendency towards suicide and self-injury, self-cutting, particularly, and very volatile emotional state. …

…

Probably the condition is based in disorganised mother/infant attachment in the first five years of life, causing a long-standing difficulty in personal relationships. …” – tt 1-4-5.

16. [16]
    Dr Beech spoke about the disorder this way:

“A personality disorder is where you look at your personality traits – the way you interact with yourself, people around you, the way you perceive the world, whether you can maintain some kind of stable sense of self, stable emotional state, whether you can regulate your emotions and your thoughts.  You know, she’s got difficulty regulating her emotions and her thoughts.  She has recurrent thoughts of self-harm, has harmed herself, has attempted suicide.  Her emotional state is very labile. …” – t 1-28.

Dissociation

17. [17]
    All the reporting psychiatrists accepted that KBC had dissociated many times in her life – t 1-54.  All the psychiatrists accepted that dissociation is experienced by some of those people diagnosed with borderline personality disorder.  However, all accepted that the longitudinal history of dissociation described by KBC was indicative of her having a dissociation disorder of some type, in addition to borderline personality disorder.  All accepted that dissociation can result in amnesia for the time of the dissociation.
18. [18]
    Dr Van de Hoef gave a definition of dissociation which comes from the DSM:

“The term ‘dissociation’ describes a wide array of experiences from mild detachment from the immediate surroundings to more severe detachment from physical and emotional experience.  The major characteristic of all dissociative phenomena involves a detachment from reality rather than a loss of reality which characterises the psychotic illness.  Because dissociative disorder is, in my view, characterised by transient personality fragmentation and because dissociation itself can and does occur in normal people, in both normal and abnormal traumatic and trivial circumstances, my understanding was that it also did not qualify as a state of mental disease.” – t 1-54.

19. [19]
    Dr Beech explained dissociation this way:

“Well, I think dissociation itself is a phenomena where – it’s probably best if you think about what association is.  We have in our mind an association of our sense of self, our sense of passage of time, our sense of our feelings, our behaviour, our sense of our thoughts.  So I can say that I’m Michael Beech.  I’m sitting here.  I know who I am.  I was Michael Beech 10 minutes ago; I’ll be Michael Beech in half an hour.  I know what’s going on.  I understand the setting. … I am probably slightly dissociated in a normal sense in that I’m very absorbed in this process, so if there are things going on here which might be in my senses or over there or the seat, I’m blocking them out.  So that’s a part of normal dissociation.  So dissociating can be normal.  People might deliberately dissociate to be able to do certain things.  And in terms of you actually being – experiencing trauma – if you’re being raped, for example, people will – they will numb, and they will depersonalise.  That’s, again, a normal dissociative process.  It becomes a disorder – it becomes pathological dissociation either because of the type of dissociation where there are periods of loss of memory, of loss of consciousness, of loss of time.  It becomes pathological when it’s extreme so that it happens so often that you just can’t function in your day-to-day life and it’s no longer serving a purpose. …” – t 1-22.

20. [20]
    Later in his evidence, when talking specifically about DID, Dr Beech explained further:

“… I think it’s – it is a pathological separation and sense of a discrete emotional state.  We have – everybody has discrete emotional states.  It’s not – so, you know, maybe not so clear, maybe not so discrete, but I am different here than I am at a different place.  My emotions will be different, my language will be different, my behaviour will be different, and – but I know that that’s still me.  But if you – if you’re a traumatised person, particularly the type of trauma she describes, then those discrete emotional states are – are much more discrete.  They are much more – the constellations of the experiences are much more coherent.  So you might say this is an angry state when I talk like this, act like this, do these types of things, and in the extreme, with a dissociative identity disorder, it actually feels it’s no longer you.  Your sense of self, your sense of I am Michael Beech is now gone, and when you go into the state – when you come back, you don’t remember what you were doing, because there’s been a separate conscious state.” – t 1-42.

21. [21]
    Dr Grant approached explaining dissociation, particularly with relation to identity, in a different, but equally helpful way:

“… I think it’s relevant to think about how these dissociative things happen.  Even when children [are] little and they develop imaginary friends, that’s at – in a very immature stage of development where a kid’s still not sure about themselves and so on, and often the imaginary friend is the one that does the naughty things that gets – you know, when someone’s dong wrong, oh, it was so and so that did it.  It wasn’t me.  And that’s an – a sort of immature, very primitive example of how the mind can sort of split to some extent, and in dissociative identity disorder, it’s kind of like a more developed form of that where the person splits off part of their emotional experience and puts them separate. … we usually find a history of trauma … At the time of being so traumatised as a child, all of the feelings and experiences and the memories are too painful to contemplate, so they’re kind of separated off into a compartment of the brain and they become a kind of separate personality later in life that can sort of come to the fore from time to time under circumstances.” – t 1-77.

22. [22]
    Throughout the hearing the phenomenon of arriving at a destination, having driven there, but without any memory of doing so, was used as an example of normal dissociation with associated amnesia – eg t 1-79.  As Dr Beech’s evidence (above) describes, it is normal to dissociate to varying degrees when concentrating on one particular thing to the exclusion of others.

Dissociative Identity Disorder/Dissociative Disorder (not otherwise specified)

23. [23]
    Professor Nurcombe diagnosed KBC with DID, so did Dr Beech, although Dr Beech expressed some tentativeness, see [28] below.  Drs Van de Hoef and Grant preferred the diagnosis of dissociative disorder (not otherwise specified) (DD(NOS)).
24. [24]
    DID is a very rare condition.^[4]  Further, to use Professor Nurcombe’s words, psychiatrists ought be very careful about not aggravating any tendency towards it by showing “excessive enthusiasm” for it.^[5]  I think that it has been inaccurately and sensationally depicted in popular culture, for example as multiple personality disorder.  From the evidence in this case it is apparent that, when properly described, it is a much less fantastical clinical entity.
25. [25]
    Professor Nurcombe explained DID as having three elements:

“… the individual’s perception of having two or more alternative personalities between which the individual may move at different times, sometimes precipitantly.

… And, secondly, to – characteristically to have dissociative amnesia, that is, loss of memory for significant periods of time. … And, lastly, the identity changes and loss of memory have to be significantly disabling and distressing, interfering with life.” – t 1-5.

26. [26]
    As to the first of these criteria Professor Nurcombe said:

“I think the best way to understand it is to suggest that individuals can have discrete emotional states.  We all have them. … In some cases, the emotional state may be very distressing and persistent and alternating, in which case the individual may begin to personify this discrete emotional state – in this case, the state of the extremely angry – as a separate person.  Of course, there are no separate people, as I think [KBC] understands, but it seems – it feels as though there were another person inside one when, in fact, what there is inside is a discrete emotional state which is highly distressing.” – t‑1‑6.

27. [27]
    Rather along the same lines Dr Van de Hoef said:

“I said that it seems to me that [LBC] could best be considered as part of [KBC’s] own personality split off, in inverted commas – and I’m sorry, that’s psychiatric jargon too – as being psychologically unacceptable to her.” – t 1‑56.

28. [28]
    Dr Beech said:

“I believe that she has a dissociative identity disorder.  Now, that means that she’s had recurrent periods of dissociation, pathological dissociation.  And during those periods of dissociation, you can see two distinct alters – two distinct personalities … I accept Professor Nurcombe’s advice, though, that it might be not as clear-cut as that, and it might be a non-specific dissociative disorder, but I think clinically that’s where you would put it – with a separate dissociative identity disorder.” – tt 1-21-22.

29. [29]
    As to the alter, LBC, Dr Beech said this:

“Why should we not see [LBC] and [KBC] as just constructs of the same mind, perhaps one that does good things and perhaps the other defined by [KBC] as being the nasty person?--- We should.  I mean, we should see separate constructs, and that would be the treatment.  The treatment is to get [KBC] to see that they are two constructs from the same mind. … Because most of the time when you read through the hospital notes, [KBC] does talk about [LBC] wants me to do this, [LBC] says this.  I mean, she seems to understand that it’s part of her mind.  …  but there are times, I would suspect, that when there’s – particularly during those periods of loss of memory … I suspect that she doesn’t – [KBC] doesn’t understand that it’s her; it’s not [LBC].” – tt 1-23-24.

30. [30]
    Dr Van de Hoef thought that the correct diagnosis was DD(NOS).  Mr Benjamin’s examination of Dr Van de Hoef was very useful in understanding why Dr Van de Hoef preferred a diagnosis of DD(NOS).  Mr Benjamin started by confirming with Dr Van de Hoef that it was important to her diagnosis that KBC was aware of LBC, intellectually speaking at least.  Mr Benjamin then asked Dr Van de Hoef to explain why that was, and she offered the following evidence:

“… And for dissociative identity disorder to be diagnosed in that DSM, it says criterion A is presence of two or more distinct identities or personality states, each with its own relatively enduring pattern.  Now, I thought it was arguable whether [LBC] actually fulfilled that criterion to begin with.  Criterion B – at least two of these recurrently take control of the person’s behaviour.  I have very little evidence for that criterion to be fulfilled other than those two chart entries from two different nurses at [redacted] saying [SBC] was on the scene.  I didn't know whether that was a transposition error or what have you, but there were no other alters that I knew of.  So that’s the reason why I didn't think – oh, and I’m sorry – there were other factors, as well.  I couldn't really get a sense that [LBC] controlled [KBC] recurrently.  I was pretty sure [KBC] dissociated a lot over the years, but it was the extent of the control that I couldn't really pin down, and that’s why I opted for the – I was going to say watered-down, but that’s not quite right – slightly less strong diagnosis of DID and went for DD-NOS – that’s what the not otherwise specified meant.” – t 1-69.

31. [31]
    Further to that Dr Van de Hoef said:

“I think [LBC] is part of [KBC’s] own personality that she’s split off for psychological reasons or as a response to trauma long ago.  But I wrestled with the jargon in the definition.  Distinct identities or personality states.  And I don’t think [LBC] is an all-rounded personality – a separate entity.  It’s semantic, I know, but it’s – I’ve met and interviewed and assessed and treated other people who give much more detailed splitting off of their aspects of personality and many more alters.  And based on that definition, that’s why I went for the diagnosis I did.

…

I don’t think [LBC] was anything like a complete personality.  And in terms of how [LBC] controlled her, I really struggled to see how she took her over or controlled her in a complete way at all.  I mean, it seemed to me there were entries in – in the file and even in this journal entry where it seems she has control over [LBC], rather and the switching.  And so that’s why I opted not for a diagnosis of DID at least based on the – on the DSM definition.  As I say, I struggled all the way along to try and conceptualise whether the dissociation, which I’m sure she did have many times, was part and parcel of her clear severe personality disorder, end of story, or whether there was a separate dissociative disorder.  There is a difference of opinion on this, and Dr Chung – Drs Chung and Lilley, I think, put it very well in their letters and records.

In any event, if it’s an episode of dissociation and one of many that is associated with borderline personality disorder and is a symptom of that, it was nevertheless a severe example of dissociation in the context of a young woman with a long history---?--- Yes.

---of such episodes?---  Yes, I would agree with that and, again, according to the DSM, severe – severe dissociative episodes can be part and parcel of that.

Yes.  Yes, thank you, your Honour.  I have no further questions.” – tt 1‑70‑71.

32. [32]
    Dr Grant was of a similar view in this regard:

“… the major diagnosis is one of borderline personality disorder.  She has some post-traumatic symptoms, which seem to be relevant to the sexual abuse – abusive relationship that she had with a neighbour when she was 11 to 12.  And there is dissociative disorder present, and it’s a matter of how you want to define that and the label you want to put on that, but I’ve pointed out that she’s had the tendency to dissociate and to split herself into pieces emotionally, if you like, since a very young child. …

… Dissociative symptoms are common in borderline personality disorder.  Whether you want to make the separate diagnosis of dissociative identity disorder really depends on the extent to which you think that this part of her has been separated off to the extent of being an alter or separate personality that takes control from time to time.  I don’t think it’s 100 per cent clear that she’s got to that point.” – t 1-76.

33. [33]
    All the doctors agreed that DID results from trauma early in life, usually before the age of six or seven.^[6]  In this context Dr Van de Hoef thought it significant that KBC could not recall anything prior to the age of six years old – t 1-56.
34. [34]
    I will note that the Court had material from Drs Chung and Lilley who had both treated KBC.  Neither of them had diagnosed DID.  Their reports were not forensic reports and they did not give evidence so I did not have the benefit of explanation of their views or cross-examination.  I will also observe that neither Professor Nurcombe nor Dr Beech saw any signs of DID, as opposed to hearing reports of symptoms.^[7]
35. [35]
    While difficult and potentially interesting questions of medicine arise in the differences between the diagnoses of DID and DD(NOS), it is not necessary for me to make any judgment about which of those diagnoses is to be preferred in this case.  Both those conditions are traditionally regarded as personality disorders and the point of controversy in this case – whether KBC was suffering from a mental disease – does not turn on whether she has DID or DD(NOS).

Other Diagnoses

36. [36]
    Drs Van de Hoef and Dr Grant diagnosed a phobia of police.  Dr Van de Hoef explained that this was a form of anxiety disorder, characterised by an unreasonable or exaggerated fear of something specific – t 1-55.  This was accepted by Professor Nurcombe – t 1-8 – and Dr Beech – t 1-27.  Dr Beech also thought that KBC suffered from chronic post-traumatic stress disorder, having regard to the history of rape which she recounts.  While Dr Beech thought it might be clinically significant in terms of treatment, he did not see this disorder as significant in terms of the questions I must deal with – t 1-28.  Dr Van de Hoef was willing to countenance the idea that KBC suffered from a post‑traumatic stress disorder, but she thought that was “harder to piece together” – t 1‑55.  Dr Beech thought that at times the defendant was depressed but he did not think it amounted to a pervasive depressive disorder – t 1-30.
37. [37]
    None of the reporting psychiatrists was of the view that these other diagnoses were significant to the questions I must decide.

Mental Disease

38. [38]
    The Mental Health Act 2000 (Qld) provides at s 267(1)(a), that this Court is to decide whether the person the subject of the reference was of unsound mind when an alleged offence was committed.  Unsound mind is defined in the dictionary schedule to the Act as meaning “the state of mental disease or natural mental infirmity described in the Criminal Code, section 27”.  The language with which I am concerned, “mental disease”, is taken from s 27 itself, which provides:

“27 Insanity

 (1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

…”

39. [39]
    Professor Nurcombe himself did not think that there was any clear distinction between a psychiatric disorder and a psychiatric disease – t 1-5.  He acknowledged however that psychiatry had traditionally made a distinction between disorders and diseases:

“Well, the difference between the disorder and disease is that in a disorder a set of symptoms and signs which go together reliably can be found.  Unfortunately, to pursue this further into the actual precise cause and change in body chemistry or body functioning or brain functioning has not been done; whereas, a disease is a reliable set of symptoms and signs which can be traced back to a causative agent and a particular pathology.  So chickenpox is a disease.” – t 1-5.

40. [40]
    As the case progressed I rather gained the impression that what Professor Nurcombe offered in this regard was one of several alternative distinctions made between psychiatric disorders and diseases.  However, looking at the distinction he offered, it takes little thought to see that as medical science changes, a particular condition might migrate between categories.  Dr Beech discussed this in his evidence, for example at the top of t 1-46 and the middle of t 1-47. 
41. [41]
    Professor Nurcombe’s view is that personality disorders are mental illnesses – t 1-7.  I understand this to be his medical, scientific or even philosophical opinion.  The basis for it was not explored in evidence.  It is not helpful to my task which must be based in the words of the statute, and the established case law as to their meaning.  Professor Nurcombe, of course, understood this and that is why he offered what he understood as the traditional distinction between disorders and diseases (above).  He discusses this further in his evidence at t 1-16ff. 
42. [42]
    Dr Beech did not agree with the distinction between disorder and disease which Professor Nurcombe proffered as being the accepted or traditional distinction (much less one which Dr Beech himself agreed with).  Dr Beech thought that the traditional (and he thought out-dated) medical definition hinged upon whether or not the cause of the complaint was injury or organic cause – disorders caused by injury, and diseases caused organically – t 1-45.
43. [43]
    Dr Beech rejected a distinction between personality disorders and mental illness:

“Well, we’ve always accepted, for example, that personality disorders are not diseases, and I can see a reason for that, in that a personality structure is an underlying norm for that person.  It’s a way that person behaves, and a disease might come and go or at least wax and wane, but a personality structure is always there?---  I know, and this is like déjà vu, because I have – I have not accepted that.  And I think it’s like blood pressure.  We’ve all got blood pressure.  We’ve all got personality traits.  And I think personality disorder is on a spectrum, and most of the time personality disorder is not a disease.  But at extremes of a borderline personality disorder, I would see that as a disease, just like at the extremes of high blood pressure, I would see that as a disease.” – t 1-46.  (on questioning by me; my underlining).

44. [44]
    Specifically Dr Beech thought that DID was a mental disease:

“So do you – do you think this is a disease?  Do you think that DID is a disease?---  Yes, your Honour, in the sense of, you know, how---

Or do you think it can be, depending on how severe it is?---  Yeah, I think borderline personality disorder can be a disease, depending on how severe it is.  I think dissociative identity disorder is a disease.  It’s the – but to do that I have to sort of say I think a disease is a severe disorder of structural function causing significant impairment.  It’s not caused by an actual injury.  Now, that’s a nice little dictionary definition but it sort of fits with what’s going on here, I believe.

If you look at the – I understand you don’t accept it as a matter of logic and science, but if you look at the traditional distinction, is DID a personality disorder rather than a disease?---  The – I think the problem is that the law may have held [onto] the word disease but psychiatry decided we’re going to use disorder.  And they did it quite deliberately.  There used to be Tourette’s disease.  People had lots and lots of tics, movements, make noises, things like that.  It was called Tourette’s disease.  Psychiatry said we’re going to call this Tourette’s disorder now.  This idea of disease doesn’t really fit with what we want to say.  If it causes impairment, it will be Tourette’s disorder.  If it doesn’t cause impairment, well, you can have Tourette’s disease, if you want.  So that’s what psychiatry has done and I think, to be fair, it’s what other areas of medicine are starting to move to.

I do understand that but I’m still bound to apply what the law is.  So we come back to my question and so if you look at this in the traditional classification, is DID something which would traditionally be classified as a personality disorder, not a disease? …

… we’ve had the books – textbooks, diseases of the mind for centuries, but it’s only, what, in the past 40 years you’ve been able to actually find the aetiological clause for it and find, you know – and if you look at dissociative identity disorder it’s called a disorder now because by the time it was being propagated as a condition, the nomenclature had moved on to the use of the word disorder rather than disease.  If you want to get down to the, well, where’s the basis for calling it a disease, functional MRI scans will show differences.  Calligraphy will show differences.  But if you actually see people who are switching – who seem reliably to be switching, you can find – you can show changes in physiological state.  I have to say, though, I am really speaking out of my area of expertise, but I just know that, when you review articles, there are things that you can point to as being physiological changes that are suggesting that there is a pathophysiological process going on, albeit it one controlled by mental disturbance.” – tt 1-46-47.

45. [45]
    This Court is not the place for the resolution of difficult and contentious debates on matters of medical science.  It is not to express either a lack of interest in, or disrespect to, practitioners’ legitimate and thoughtful views about such things to say that the Court is bound to act on orthodox notions of both medicine and law in determining questions such as arise in this case.  As I think Dr Beech’s evidence showed, if medical science is developing towards a better understanding of what are currently termed personality disorders, that evolution has some way to go before there is a clearly articulated position subscribed to by the majority of the medical profession.
46. [46]
    Dr Van de Hoef and Dr Grant gave evidence of the orthodox distinction between mental disease and personality disorder, to which they both subscribe, while acknowledging that, as with virtually any system of classification, individual cases at the extremes of any category may sit unhappily within the overall framework.
47. [47]
    Dr Van de Hoef gave this evidence which I think assists in understanding the disease/disorder divide:

“I think you asked me whether personality arose or was – arose from the mind.  I think it has to be.  My understanding in a general sense of personality is that it’s part of our pervasive way of relating to the world and ourselves, and it’s borne of many things.  It’s probably in our DNA.  We’re born with temperamental factors.  Clearly [KBC] was, too.  She had temperamental difficulties from infancy.  And then life happens to us and shapes the way our personality is expressed, as do many other things: our physical health, mobility, our athletic ability, our singing voice, a propensity to take drugs and alcohol.  Many, many things impact on personality.  But it’s a pervasive pattern really coming on in the late teens, early adulthood, and persisting throughout our lifetime.  So it is the person’s makeup and unless somebody suffers dementia or acquired brain injury, by and large it’s something that we keep, and we’re stuck with.  A personality disorder is a problem in the way personality affects a person’s functioning in the world and either causes distress or poor functioning or both, and distress can mean to the person themselves or to other people.  The so-called classical psychiatric disorders you initially referred to, to my way of thinking, are something that happens to somebody.  They develop and, with any luck, with come and go, be treated or cured, wax and wane, and in many cases they have less control over when they come on, when they go off, etcetera.  That’s a pretty clumsy definition but we’re just – we have a number of clumsy definitions here.” –  t 1-67 (my underlining).

48. [48]
    That answer needs to be understood in the context that the preceding question was:

“… clinical diseases, clinical disorders, if you like, the classic, I suppose, psychiatric disorders, we’re speaking there of what are regarded by law as diseases of the mind.  When we speak about personality disorders, where’s the distinction between the personality and where that personality exists or is created?  Is that not within the mind itself, in any event?” – t 1-67.

The point is that Dr Van de Hoef’s answer refers back to the question – “the so-called classical psychiatric disorders you initially referred to” – and must be understood in context as referring to mental diseases (as opposed to personality disorders). 

49. [49]
    Dr Van de Hoef’s thinking in this regard accords with the notion that personality structure (and disorder) is something which is an integral part of a person – normal for that particular person.  In contrast, an illness or disease, such schizophrenia or depression, develops in a person and may with treatment be mitigated or relieved – ie, it is regarded as something separate to the person; something from which the person suffers.  See in this regard t 1-72 ll 10-20.  However, the distinction which she made had an additional clinical aspect to it.  She did not think that a personality disorder was capable of depriving someone of the capacities specified in s 27 of the Criminal Code.  As to this second aspect of the distinction, Dr Van de Hoef explained her view that dissociative disorders are not illnesses or diseases but disorders in her report:

“As I understand it however, historically the Court does not define Borderline Personality Disorder (with or without dissociative episodes) as a state of mental disease as defined in Section 27 of the Criminal Code.  Similarly, I have also diagnosed Dissociative Disorders NOS in this young woman, and think she probably dissociated at some stage on the night in question (including during the alleged assault and struggle with police).  The essential feature of dissociative disorders is a disruption of psychological functions that are normally integrated: memory, identity, consciousness and perception.  The term ‘dissociation’ describes a wide array of experiences from mild detachment from the immediate surroundings to more severe detachment from physical and emotional experience.  The major characteristic of all dissociative phenomena involves a detachment from reality, rather than a loss of reality, which characterizes the psychotic illnesses.  Because Dissociative Disorder is in my view characterized by transient personality fragmentation, and because dissociation itself can and does occur in ‘normal’ people in both normal and abnormal, traumatic and trivial, circumstances, my understanding was that it also did not qualify as a state of mental disease.”^[8] (my underlining).

50. [50]
    In amplification of the part of her report just extracted, Dr Van de Hoef said this about the difference between the loss of reality experienced during psychosis, and detachment from reality experienced during dissociation:

“What, Doctor, clinically is the significance in drawing a distinction between a detachment from reality as opposed to a loss of reality?---  I like to think that that’s very significant.  Many people detach from reality, either temporarily or for longer periods of time, but when they – when they are no longer detached, they know full well who they are or where they are or what they’re doing, and they can think and reason clearly.  In this court, in my experience, when we talk about loss of reality, that’s almost always in the context of the psychotic illness.  There’s a whole raft of psychotic illnesses where the person honestly isn’t aware that their thinking is awry, that their conclusions are wrong, and their perceptions are based on something or stimuli that haven’t actually happened, and they’re making conclusions all on the basis of things that aren’t real.  So I think there is a big difference clinically, and I’ve tried to emphasise that I do not think [KBC] is or probably ever has been truly psychotic.” – t 1-55.

51. [51]
    There was some discussion while Dr Van de Hoef was in the box about whether or not assistance might be gained from the categorisation of psychiatric complaints (to use a neutral word) into Axis I and Axis II in DSM-IV.^[9]  As is recorded in the transcript of the hearing, my lay understanding was that Axis I diagnoses in DSM-IV accorded with mental diseases and that Axis II diagnoses accorded with personality disorders and etcetera.  However, it appeared from consulting DSM-IV through the hearing, that understanding was not correct and that dissociative disorders were included in the DSM‑IV categorisation of Axis I disorders, but not in their own right, so to speak.  Axis I was defined as “clinical disorders and other conditions that may be a focus of clinical attention”.  Dissociative disorders were within the latter part of that definition.  In any case, DSM-IV has been overtaken by DSM-V, which abandoned the Axes system of classification.  The assisting psychiatrists (t 1-65) expressed the view that DSM-V was not necessarily regarded as highly as DSM-IV.  Separately Dr Harden advised that I ought not get too bound up by the particular “approach to nomenclature and stratification of diagnoses” (t 1-66) in either DSM-IV or DSM-V.  No-one expressed a different view to this.  It was Dr Van de Hoef who first raised the question of Axes at t 1-57.  She did so in the context of discussing borderline personality disorders.  She then remarked that dissociative disorders appear in Axis I.  However, she was certainly not seeking to draw from this a conclusion that dissociative disorders were mental diseases rather than disorders, for her view is that personality disorders, including dissociative disorders are not mental diseases.  In these circumstances I think the advice of Dr Harden is sensible and I do not place any weight on the classification in DSM-IV according to Axes.
52. [52]
    Dr Grant’s view on the disease/disorder controversy was expressed in his report as follows:

“Whilst there is no doubt that [KBC] is an emotionally disturbed individual, it is, in my opinion, not reasonable to accept that when she is expressing herself as “[LBC]”, that that state is somehow separate from [KBC] as a whole person, and that she, as a whole person can be absolved of responsibility for behaviour.  The whole person of [KBC] is made up of all her parts and all aspects of her emotional life.

Whilst these matters can clearly be debated and subject to differing opinions by psychiatrists or other mental health professionals, in my opinion dissociation, even in its more extreme form of Dissociative Identity Disorder, does not represent a mental illness that can deprive a person of capacities of understanding, moral knowledge or control.  In my opinion, the individual must be taken as a whole, and parts of their emotional life or psychological functioning cannot be seen as somehow relating to a separate person or an entity that cannot take responsibility.” – p 20 (my underlining).

53. [53]
    From the above passage, and the passage below, it can be seen that Dr Grant, like Dr Van de Hoef, was saying that there were two aspects to his reasoning as to why dissociative disorders were not mental diseases in terms of the definition of unsoundness of mind.  First, he saw disease or illness as something which supervened, additionally to personality.  Secondly, he saw personality disorder as something which did not cause a loss of reality and thus did not cause a deprivation of the relevant capacities. 

“Well, I think one issue is whether – where it sits diagnostically, and there’s been a lot of talk about axis I and axis II and so on, and whether it’s a disease or a disorder.  I think of it in terms of ball parks.  You know, we’ve got one ball park where schizophrenia and bipolar disorder and major depression with psychosis and heavy organic disorders sit, where people clearly become very unwell, it’s a temporary thing or it’s an add-on to their personalities we’re talking about, and they lose contact with reality because of the effects of that disorder or illness.  There are other – lots of other conditions that sit in a different ball park, so we’re talking about anxiety disorders, panic disorders.

That would be things like post-traumatic stress disorder---?---  Post-traumatic stress disorders, which are a specific kind of anxiety disorders.  There are the phobias.  And then there are personality disorders, which are sort of slightly different ball park, but overlapping with the anxiety sort of type disorders.  So you’ve got these different ball parks, but they’re surrounded by different fences, and I think the psychotic disorders clearly can deprive you of capacities, whereas the more neurotic or the – used to be called neurotic – the anxiety disorders generally don’t, because you don’t lose touch with reality.  And dissociative disorders fit in that ball park, not in the psychotic ball park.  They are a kind of defence mechanism taken to extremes.  We all can use dissociation to defend against unacceptable or experiences that are too difficult. …” – t 1-78. (my underlining).

Advice from the Assisting Psychiatrists

54. [54]
    Dr Sundin’s view was that “the case for a full-blown dissociative identity disorder was not adequately made out”. – t 1-20.  Dr Harden was non-committal on this point – t 1-22. 
55. [55]
    Dr Sundin did not believe that KBC suffered from a mental disease – t 1-21.  Nor did Dr Harden.  Dr Harden’s reasoning in relation to that accords with that of Drs Van de Hoef and Grant in that, as well as involving the idea of an illness being something supervening over and above a person’s natural personality, he saw the distinction as based in whether or not the condition in question was capable of affecting a person’s capacities and taking away their moral culpability for their actions.  He saw personality disorders as conditions which were not capable of doing that – t 1-22.

Conclusions as to Mental Disease

56. [56]
    For reasons which I hope fall out of the above discussion, I am not persuaded that borderline personality disorder, DD(NOS) or DID are conditions which are mental diseases within the meaning of the Mental Health Act 2000 (Qld) or s 27 of the Criminal Code.  I accept the orthodox psychiatric view that these personality disorders are not diseases. 
57. [57]
    Someone’s personality is a fundamental pattern of behaviour which is part of them.  When it is so dysfunctional as to amount to a disorder, treatment is aimed not at relieving the person of their personality, or curing the person of their personality, but enabling the person to use strategies and tactics so that their personality does not cause them such problems in their interaction with the world.  To the contrary, a disease is something which supervenes and exists independently of someone’s baseline personality.  Treatment is aimed at curing or at least relieving the illness.  I accept the psychiatric opinion from Drs Grant and Van de Hoef, in accordance with Dr Harden’s advice that, however severe a personality disorder may be, it does not cause a loss of contact with reality the way a psychotic illness does.  It does not therefore have the potential to deprive a person of one of the three capacities listed in s 27 of the Criminal Code. 
58. [58]
    This conclusion is consistent with previous decisions in this Court or its equivalent: GMB.^[10]  I note from the report of R v O'Ryan,^[11] that DID was apparently left to the jury pursuant to a defence under s 27 of the Criminal Code in that case.  The Court of Appeal made no adverse comment on that, but it does not appear to have been an issue which was raised before that Court.  In McDermott v The Director of Mental Health; ex parte Attorney-General (Qld)^[12] the Court of Appeal by majority held that the personality disorder in that case was insufficient to constitute an abnormality of mind when the partial defence of diminished responsibility was considered.  Generally speaking, the conditions capable of amounting to an abnormality of mind are less stringently defined than is a mental disease amounting to unsoundness of mind.
59. [59]
    Mr Benjamin found reports of the New Zealand case of The Queen v Hamblyn.^[13]  In that case the District Court judge accepted the idea that DID could be a disease of the mind and then set about determining whether or not the alter, claimed to be expressed at the time of the offence, was a personality which was deprived of one of the capacities.  That approach is not one open to me on the evidence in the case before me.  With respect, nor do I think it a sensible way to approach the condition of DID.
60. [60]
    My view is that DID and DD(NOS) are not diseases of the mind.  Nor is borderline personality disorder.  In those circumstances the defence of unsoundness is not open to KBC.

Concluding Observations

61. [61]
    I would like to make it perfectly plain that these reasons for judgment concern legal definitions.  There is no doubt at all that KBC suffers from genuine and significant difficulties.  I would not like it to be thought that my conclusions minimise that in any way.  I will also record that in all the extensive material before the Court there is no criticism of her parents or her family.
62. [62]
    In closing, I will record part of the evidence which Dr Van de Hoef gave to the Court:

“… I mean, we’ve been talking about all the things that are wrong with [KBC], but … I’d just like to point out that she actually has considerable strengths, and when she’s well and travelling better and not exposed to stressors, whatever they may be, she does have intelligence on her side.  She’s not got a history of pervasive drug and alcohol abuse.  She’s likeable.  She’s talented.  She’s got a family behind her.  She’s got a home to go to.  So there are strengths there.” – t 1-60.