Re WBD[2018] QMHC 4

MENTAL HEALTH COURT

1. [1]
   This reference was in relation to two charges from 19 November 2014.  One was stealing as a servant and the other was fraud.  WBD was an 18 year old babysitter who stole makeup and jewellery from the woman who employed her to look after her child and sold it at Cash Converters. 
2. [2]
   The reference was supported by a report of Dr Jeremy Butler, dated 21 March 2016.  The defendant told Dr Butler that she was sexually assaulted by a neighbour when she was 12 and had flashbacks which still persist.  The defendant told Dr Butler that she hears derogatory voices coming from the middle of her head, one male and one female.  Both of them speak in the second or third person.  They tell her to hurt herself and hurt other people.  They tell her she is worthless and a loser.  She told Dr Butler she thought the voices were able to make her do things, “as if they take over her body”.  The defendant has a history of suicidal ideation and self-harming.  She reports what Dr Butler calls “depersonalisation” while self-harming.  She told him she had taken up to 15 overdoses and once tried to hang herself (six months ago). 
3. [3]
   The defendant told Dr Butler she was seeing a psychiatrist every fortnight and had a case manager.  She was prescribed medication to calm her and had diagnoses of borderline personality depression and complex PTSD.  The defendant described a childhood where her father left home when she was two-and-a-half years old; saw her on a regular basis until she was 10 years old, and then significantly reduced contact with her.  Her mother had another domestic and sexual partner who left when the defendant was seven.  Her mother has had a further two partners since then.  The defendant said one of these men was emotionally and occasionally physically abusive.  She described wanting to run away from home.  Although the defendant did not recall any specific abuse or neglect during early childhood, Dr Butler noted that her mother was only 16 when she was born.  Against that background, Dr Butler thought that the defendant was insecure in her childhood attachments.
4. [4]
   The defendant told Dr Butler that she worked as a babysitter for the victim of the offences for eight months from April 2014.  She also worked at a childcare centre, but ceased working there, she told Dr Butler, because she heard voices telling her to hurt the children.
5. [5]
   As to the offences, the defendant told Dr Butler that she had been working long hours for her employer, sometimes 15 hour shifts.  Her employer was a single mother.  She said there was no tension or anger in the relationship between her and her employer and that she believed her employer was a good mother.  However, she said that intrusive voices began to tell her that the employer was not a good mother because she never came home and that she (the mother) did not need the jewellery.  The voices, she told Dr Butler, began to scream at her and tell her to steal the property.  They said that if she did not they would continue to scream at her.  She said she resisted the voices for about two weeks but then she could not bear it any more and stole the items.  She said when she took the property she was disconnected, “as if she did not have control”.
6. [6]
   Dr Butler gave the opinion that the voices which the defendant reported were “an intrinsic part of the post-trauma syndrome”.  He describes that this has to do with a fragmented psyche, where parts of the defendant’s personality have become disconnected from her conscious mind, and so are experienced by her as though it was someone or something separate from her.  He said that he thought “the phenomenology of the voices was more intrusive, persuasive and elaborated than the typology of voices which one associates with borderline personality disorder”.  He gave the opinion that the defendant’s capacity to resist the voices was “often diminished to the extent similar to what one would see in patients with schizophrenia and other psychotic conditions”.
7. [7]
   Dr Butler thought that although the defendant had several features of a borderline personality disorder, they were better regarded as linked to her post-trauma syndrome.  He said:

“From her account, I believe [WBD] was overwhelmed by the effect of these voices at the time of the alleged offending and that her judgment was markedly impaired.  From an albeit speculative psychodynamic perspective, I believe that unconscious, unacceptable, egodystonic anger directed towards her mother because of perceived failures vis-a-vis her perceived inability to provide a safe, secure childhood environment, was displaced onto her employer who was unconsciously viewed as a neglectful single mother.  Although [WBD] understood what she was doing and that she ought not commit the act, I believe her ability to withstand and neutralise the command voices became progressively depleted as a result of their increasingly loud, persistent and intrusive nature.  Therefore, I believe that [WBD] was deprived of the capacity to control her actions.  From my observations of her demeanour and her narrative, I believe that [WBD] was not dissimulating or exaggerating the voices upon her.” (my underlining)

8. [8]
   Dr Butler gave a second report dated 31 October 2017 after he had seen the reports of Dr Michael Beech.  He maintained his opinion.  He gave the opinion that the defendant’s “psychopathology” represented a mental disease as defined under the Mental Health Act 2000.  He said:

“Although I believe that the phenomenology of the voices occurs on the same general spectrum as those commonly experienced in borderline personality disorder, I believe they are qualitatively different, and not indicative of subjectively controllable thoughts and are less amenable to conscious control.

In my opinion, the separation of voices into either pseudo-hallucinations or auditory hallucinations is neither diagnostically instructive nor indicative of the qualitatively compulsive element of the experience.

I believe that the voices which were loud, recurrent, and threatening had a dramatic effect upon [WBD’s] psyche resulting in a compulsion which ultimately became irresistible.

I believe that the collateral history suggests that [WBD’s] reference to the voices is not due to dissimulation.

I accept that it is a possibility that [WBD’s] describing the voices as irresistible, to some extent, represent a retrospective rationalisation of her offending behaviour which alternatively could be construed as representing an actual plan to obtain personal gain per se.”

9. [9]
   In making the last comment Dr Butler took account of the fact that the defendant told the complainant she had taken the property because she was short of money and needed it for her wedding.  He discounted that because he thought that the defendant would be unlikely to want to tell her employer she was hearing voices.  It was the fact that she was anticipating being married at the time.
10. [10]
    Dr Beech gave a report to the Court dated 1 April 2017, together with two supplementary reports, 28 August 2017 and 20 November 2017.
11. [11]
    Dr Beech noted that, at the time he examined her, WBD was a 20 year old woman who lived with her four month old son.  She was unemployed and received the single parent support benefit.  She was not receiving any psychiatric treatment and was not on any medication.
12. [12]
    The defendant gave Dr Beech a similar history so far as her disrupted childhood relationships were concerned.  She told him, as she had told Dr Butler, that she was raped by a neighbour when she was 12 years old.  She said that between the age of 12 and 17 years she suffered nightmares and flashbacks.  She said she engaged in self-harm from 13 years, and began hearing voices at 16 years.  She described several incidents of self‑harm by cutting and overdose.  She said that she had diagnoses of borderline personality disorder, complex post-traumatic stress disorder, depression and anxiety.  She has been prescribed psychotropic medications over the years but told Dr Beech that none have given her any relief from the symptoms she reports.
13. [13]
    She told Dr Beech that she heard the voices of an adult male and an adult female almost constantly.  They made negative comments about her.  They would scream at her and tell her to kill herself.  She said they would give her commands and if she did not accede to the commands she would feel sick; feel pain; fall to the ground, and have to cover her ears and rock herself to calm down.  She said that these days she can block out the voices better.  The voices are inside her head, but she did not think they were her own thoughts.  She described sometimes arriving at a particular place without remembering how she got there.  That is, she described minor episodes of dissociation. 
14. [14]
    As to the offending, the defendant told Dr Beech that she had been working for the complainant since about April 2014.  Sometimes the work involved long hours from about 7.00 am to 11.00 pm.  The work was reasonable and the pay was good.  Sometimes her employer would return later than expected which meant that the defendant missed her train home and stayed overnight at her employer’s house.  The defendant said she thought her employer was a sex worker because of the late hours she kept.  Over time, the voices she heard started to tell her that the woman was not a good mother and that the woman did not deserve the things she had.  The defendant told Dr Beech that the voices told her to take the jewellery.  The voices told her to look through the woman’s jewellery and when she saw the particular rings (four) which she stole, the voices told her to take them.  She resisted the voices at first but the voices persisted and eventually “I basically cracked”.  Dr Beech asked the defendant why she did not simply quit the job when the voices persisted.  She said she stayed in the job because she needed the money.  She had only two shifts at another childcare establishment, so she was finding it difficult to pay the bills.  She was living with a man at the time.  He was an apprentice and did not earn much money, so the household struggled financially.
15. [15]
    The defendant told Dr Beech that after she had taken the jewellery, the voices told her to sell the jewellery.  Again she complied with the voices because she wanted to make them stop.  The voices did not usually tell her to do things like steal; they usually told her to harm herself.  She could not account for why the voices gave her the commands to steal or sell the jewellery.  The defendant took the jewellery to Cash Converters.  When she was there she gave false information.  She told Dr Beech that the voices told her to lie to the Cash Converters’ staff.  When she got the money from Cash Converters the voices stopped.
16. [16]
    On another occasion the voices had told the defendant to take makeup from her employer.  The voices told the defendant that her employer did not deserve the makeup.  So she stole it.
17. [17]
    Dr Beech specifically questioned the defendant about whether she took the jewellery because she needed the money.  She denied it.
18. [18]
    When the complainant noticed missing items she confronted the defendant.  The defendant confessed that she had taken the makeup and gave it back.  She denied taking the rings.  Then after further contact from the complainant, she admitted that she did take the rings and told her (the complainant) that she needed money for her wedding.  The defendant agreed to make a payment plan to repay the value of the items taken, but she never made any payments at all.
19. [19]
    When interviewed by police about the matter the defendant said that she had borderline personality disorder and the voices in her head “made her do it” because if she did not obey them they would scream at her.  She told the police she understood that stealing was wrong.
20. [20]
    Dr Beech thought that the defendant had post-traumatic stress disorder and a form of borderline personality disorder.  Associated with this latter disorder were recurrent thoughts and acts of self-harm, and periods of depersonalisation or dissociation.  In Dr Beech’s opinion, the voices which the defendant reports hearing:

“… reflect internal morbid phenomena associated with trauma and personality disturbance.  While I accept that they can become intense, intrusive and distressing, the voices are not primarily psychotic in nature.  [WBD] is aware they are inside her head, and there is nothing to indicate I believe any associated psychotic phenomena such as delusional beliefs, disorganised speech and behaviour, blunting of affect, or recent deterioration in social functions.  Indeed, at the time of the alleged offences [WBD] was employed as a childcare worker at the childcare centre and by [the complainant].  She was involved in an intimate relationship.  In her interview with police, while she appears upset and sad, there is nothing to indicate a psychotic process.  Instead she is able to give a coherent account of herself undistracted by internal voices or other cues, and unaffected by distorted beliefs.

In my opinion [WBD] was not deprived of any relevant capacity that would have rendered her of unsound mind at the time of the alleged offences.  There may be psychodynamic reasons for her acting as she did.  As Dr Butler indicates, she may have perceived her employer to be a neglectful woman and this may have brought back memories and emotions related to her own childhood upbringing.  This may have intensified the voices, which I think ultimately are a morbid representation of her own thoughts and emotions about herself and others.  These voices may have become distressing, but she knew that it was wrong to steal.  She had alternative courses of action, such as leaving her employment, or seeking assistance.  I believe that she was able to control her behaviour, and in fact it was quite organised and it occurred over a significant period of time, from the moment she started to look for the items, stole them, travelled across town by bus, pawned them, and then lied about it.

As well, I think that it has to be said there is an alternate explanation for her behaviour.  [WBD] was in strained financial circumstances.  She had part‑time employment and she was living with her partner who was a poorly paid apprentice.  …”

21. [21]
    In his report of 28 August 2017 Dr Beech gives a short review of the numerous admissions which the defendant has had for self-harming behaviour.  He notes particularly that on an admission between 11 April 2015 and 28 April 2015 there was a specific focus on reports of auditory hallucinations and that one of the goals of the admission was to clarify their nature.  The defendant was monitored during the admission and it was concluded that the auditory hallucinations were “non-psychotic in nature”.  Dr Beech repeats that he believes the voices are not hallucinations but pseudo-hallucinations, non-psychotic in nature.
22. [22]
    Both Dr Butler and Dr Beech gave evidence at the hearing.  Dr Butler conceded that people do hear voices in the absence of psychotic illness.  He conceded that people with personality disorder do hear voices which give them simple commands.  He thought it was on a spectrum and that there was no sharp division between this and people who heard voices as part of true hallucinations in psychosis.  He conceded that the defendant understood that the voices were not real.  This is a major distinction in my view between what the defendant here describes and what people with psychosis experience.  A psychotic person experiencing voices as part of hallucinations thinks they are real.  The defendant did not think the voices were real.  Dr Butler seemed to think that this distinction did not matter in circumstances where he perceived, from what she told him, that the voices have a strong effect on the defendant.  It became clear in cross-examination that he did not really push her about how real she perceived the voices to be.  He was able to say that:

“… she didn't perceive the voice to be coming from some alien source as part of some delusion.  Sometimes people who have voices, they actually link it to a delusional thought process where they believe, you know, the television, for instance, is talking to them, or a car driving past is talking to them, or – or they’re sitting in a coffee shop and they can hear the person next to them speaking about them.  So in those cases it’s quite easy to say, okay, we’re linking the voice or the hallucination to some other easily identified objective phenomenon, but often that’s not the case.  It’s not as simple as that.”

23. [23]
    Dr Butler conceded there were no delusional beliefs associated with the voices which the defendant heard.
24. [24]
    Dr Butler, understandably, was cross-examined about his view that he thought the defendant was probably lying to her employer when she confessed that she stole items because she needed the money.  His view was that she was not likely to explain the voices to her employer.  He could not explain in that context why she then told the police almost immediately about the voices and, in the course of attempting to explain his position in this regard, said that by the time she spoke to the police she had realised it was not in her interests to suppress her experiencing the voices.  She had come to realise she should be honest about what she was experiencing, even if she did not feel comfortable talking about it.  In the course of that discussion, Dr Butler did concede that he did “definitely” see the other way of looking at it: viz, that there was a dishonest motive for secondary gain in the stealing, but he thought when he spoke to the defendant that she was being genuine.
25. [25]
    Dr Butler did not take a detailed history from the defendant as to when she stole the items, although he did have the rather vague understanding that she stole on more than one occasion and then separately took the jewellery to Cash Converters to sell it.  These things were obviously relevant because if he postulated that the defendant was out of control at the time she stole and the stealing did in fact occur over, say, a week or two, the case he sought to argue became very much more difficult.
26. [26]
    In fact I think the examination of Dr Butler by Dr Varghese really showed that Dr Butler did not consider that what was described by the defendant was a real hallucination or a real delusion – see tt 1-18-19.  Further, he conceded on questioning from Dr Varghese that the defendant’s experiencing voices was amenable to some extent to her conscious control in a way which someone experiencing schizophrenia or psychosis does not have – t 1-20.  He conceded that what was going on in the defendant’s head (as she reported it) was something which could be understood, in contrast to the way a psychosis cannot be understood – t 1-21.  Dr Varghese’s advice was that, “There’s a big gap between a pseudo‑hallucination and a true hallucination and that gap is the gap of understandability, that you can’t – you can understand if you can empathise with the borderline patient the experiences they’re having.  You can’t empathise and understand what’s going on in the experience of a person with schizophrenia.” 
27. [27]
    On examination by Dr Davison, Dr Butler found that he had noted the defendant was being reviewed by a psychiatrist every fortnight at the time of the offending.  It was apparent from Dr Butler’s answers that he did not explore with the defendant how, to quote Dr Davison, “… it was that she was in this state of great distress with voices pressing her to commit crimes, and that she was not able to engage support and assistance from the therapist that she was working with?” 
28. [28]
    Dr Butler also conceded on questioning from me that he had not tested in any real way whether or not the defendant’s blaming her conduct on the voices was a rationalisation for what she knew to be unacceptable behaviour.  This is in the context where he admitted that he knew his report was a controversial one and the voices, on the defendant’s own account, had never, apart from this one instance, urged her to do more than harm herself or harm others.  That is, the voices had never urged her to commit property offences before.  Dr Beech was more sceptical.  He did question the account which the defendant gave to him, Dr Butler and to the police.  In fact it became clear in his oral evidence (extracts below) that he did not believe the account.
29. [29]
    Even accepting the defendant’s account of the voices, Dr Beech thought that there was no evidence that they in fact controlled the defendant’s actions.  He said this:

“… I don’t see that what she did was a made action in the psychotic … sense … I think what you could see is that there’s, in fact, a very controlled action.  She searched for the jewellery in the boy’s room and in [the employer’s] room.  She found the jewellery.  She took it.  She travelled across town, went to the pawnbrokers, lied about owning it, took the money and then spent it.  That’s a very long arc for someone acting on pseudo-hallucinations or non‑psychotic hallucinations.  Most of the time, non-psychotic hallucinations are intense and can be distressing, but they are, you know, ‘You’re stupid.  You’re worthless.  Kill yourself.  Jump off – jump in front of the train.  Jump out the window.  Punch her.’  Not this long arc of, ‘go search for some jewellery.  The woman doesn’t deserve to have it.  Now you need to go out.  Take it to the pawnbrokers.  Lie to them.  Take the money.  Spend it.  Lie to the woman when she contacts you a couple of months later about the missing items.’  That all seems to me to be just a bit too neat and not generally in keeping with the non-psychotic hallucinations of a command nature that someone might get with a severe personality disorder.  And I think, in truth, not in keeping with [WBD’s] usual description of the voices that she has heard for most of her life, which have been derogatory in nature or telling her to harm herself or possibly others.”

30. [30]
    Dr Beech explained the reason for his scepticism, explaining that there had been times when the defendant had resisted the voices and continued:

“My concern is that first of all there is a self-serving reason that she might have complied with these voices.  There is other things that she could have done.  She could have left her employment.  She could have walked out of the house.  She could have done many other things.  But, in fact, she continued on and pawned the items, took the money, spent it, and then returned to work.  There are other things that she did during this time which I think make it seem more indulgent that she took the makeup, some of the cosmetics and the mascara and things like that  …  And finally, not to minimise the extent of how severe - how distressing these voices might be, I don’t see that kind of level of distress is any different to what [we] might see in other non-psychotic conditions such as obsessive compulsive disorder or panic disorder or things like that, and although you might feel overwhelmed or stressed, it’s not that you can’t control your actions.  It’s just that at some point you relent.”

31. [31]
    The type of simple voices which are experienced as pseudo-hallucinations, or, in other words, by people who do not have a psychosis, are different to the type of voices which people with psychosis experience.  They are simple and usually derogatory voices urging the person to self-harm, harm others, or making derogatory comments about the person.  Dr Beech said this:

“HER HONOUR:  And that sort of very simple command or very simple message that the voice is giving, hurt yourself, hurt someone else, as you were saying, you’re bad, you’re ugly, you deserve harm, is very derogatory?--- Yes.

Is that the kind of voice that would say she doesn’t deserve this lovely jewellery, you deserve this lovely jewellery, why don’t you take it?  Is that a typical kind of thing that people with borderline personality or post-traumatic stress would---?--- Your Honour, I think if she had said voices were screaming at me all the time, telling me I was bad and telling me that this woman is just like your mother and she’s really bad too and she doesn’t deserve things, and there I was, cleaning up, and I saw these earrings on the bench and the voices said throw them out the window---

Smash them?--- Smash them.  I would’ve thought, you know, I have some sympathy to that, but they didn’t.  They said search – she doesn’t deserve these things, perhaps.  Search the place.  Search the boy’s room.  Search the woman’s room.  Find these things in the drawer.  See things on the shelf.  Take them.  Take the mascara while you’re at it.  And then go across town and pawn them.  This doesn’t – this – I can see that she would have those thoughts, and I could see that she would give those permission statements to herself, and they might seem congruent with her world view because she might, as Dr Butler who very eloquently has written, you know, that she saw everything wrong with the situation with her mother and somehow this allows her to go ahead with these thoughts that she’s having.  But it’s different to the – I would think the command voices that you might hear, which is punch her, smash the earrings, throw this stuff out the window.”

32. [32]
    Dr Beech thought that the defendant well understood that the voices she experienced were not real but something that she experienced.  He said this was evident in what she told the police in the police interview, and I agree with that.  She explained to police that she understood that she heard voices in her head as a result of her having borderline personality disorder.  Dr Varghese’s view was that when a patient experienced pseudo‑hallucinations the patient was always aware that the voices were part of themselves.  He said these type of voices may be distressing but were not of psychotic intensity that would cause someone to do something one did not want to do.
33. [33]
    So far as the difference between pseudo-hallucinations experienced by somebody with a personality disorder and true auditory hallucinations experienced by someone with a psychotic disorder who believes that the auditory hallucinations are real, Dr Beech said that his opinion did not just rest on, for example, whether the voices came from inside or outside somebody’s head: “What usually, in my opinion, causes deprivation when you have auditory hallucinations is the delusional belief that goes with it as to why you should do this.  And I think that – and clearly throughout all the material WBD has been clear that she knew what she was doing was wrong.”  Dr Beech said that in someone with a borderline personality disorder or dissociation, voices represented distress, not the voice of someone or some entity which had authority to command the person hearing the voice.
34. [34]
    In further explanation of this Dr Beech said:

“… I said it seems to me that when you get deprived as a result of hallucinations, it’s the delusional thinking that goes with the hallucination that causes the deprivation, not the voice itself.  I’ll have to think through that, and that may not be the end of it all, but it seems to me that most times it’s said, well, the voices made me do it, what was the voice?  It was God telling me to do this, or I had to do the voices [sic] because if I didn’t do what the voices said, the world was going to end or something.  There was a delusion behind it.  I don’t think there was a delusion behind [WBD’s] behaviour except that if she did what the voices said, that she wouldn’t feel as distressed by them.”

35. [35]
    Dr Varghese advised that I should accept this evidence: his view was that it was not hearing a voice that makes a person do an act in response to a command hallucination, but the meaning or authority which is attached to the auditory hallucination, ie., it is that the hallucination is part of the delusional system.
36. [36]
    In Dr Varghese’s opinion the evidence established that there was no disease of mind.  Dr Varghese thought that the central issue in assessing the patient was one of personality.  He thought that the defendant’s personality was fragmented, “so that she doesn’t experience herself as being a unitary self.  There are aspects of herself she doesn’t like; she experiences as if they’re alien [to her].”  Dr Varghese said that if one assumes she does hear voices as she reports, they are manifestations of unacknowledged aspects of herself.  In this case, aspects which wished to punish the woman who employed her for similarities to her own negative childhood, and to gain things of material value.  Dr Varghese said, “… she experiences, if you like, the poorer angels of her personality as being voices”. 
37. [37]
    Were I to decide the issue of unsoundness I would prefer Dr Beech’s evidence on the advice of my assisting psychiatrists and find that there was no disease of the mind or natural mental infirmity, and no deprivation of the capacity of control.  However, I take the view that this case falls within s 269 of the Mental Health Act 2000.  I think that the factual matters which are material to the opinions of Drs Butler and Beech are in dispute.  Dr Butler believed the defendant’s account to him of the voices; Dr Beech did not.  For myself, I am critical of Dr Butler’s approach for he did not really challenge the defendant about the things she said.  In fact, he did not even take a proper factual history as to the number of occasions upon which offending took place; the sequence of these acts, and the time over which they took place.  Such a detailed history is, I think, needed before a useful analysis of the likelihood of the defendant’s account could be made.  Dr Beech assumed a longer sequence of events and it can be seen that was material to his disbelief that non-psychotic pseudo-hallucinations could cause the defendant to be deprived of the capacity to control herself over the entire time of the offending. 
38. [38]
    Before one could accept Dr Butler’s opinion one would have to reach a range of factual findings favourable to the accused.  One would have to find that she was experiencing voices as she said, notwithstanding the voices she experienced had never before told her to commit property offences.  One would have to accept that she acted in response to the voices, not in response to financial necessity or in response to simply a childish envy and desire to take jewellery and makeup.  One would have to conclude that she had no control over her actions in response to the voices when (depending what the facts might reveal about the time period and occasions of the offending) she did have other options available to her including leaving the house, leaving the employment, seeking advice from the psychiatrist she was engaged with, etc.  One would have to disregard her admissions to the complainant that she was sorry and that she acted out of financial want or need.  At a more minute level, one would have to consider whether one accepted the version the defendant gave to the police or the versions she gave to Drs Butler and Beech.  These are all factual questions to be determined by a jury.  This Court cannot determine them.
39. [39]
    In light of these conclusions my findings and orders are that:

1. The facts material to the opinions of Dr Butler and Dr Beech are so in dispute it would be unsafe to make a decision on the reference;

2. The defendant is fit for trial, and

3. The proceedings for the offences the subject of the reference should proceed according to law.