Risks to Others Flowing From Chronic Mental Illness
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In limited circumstances, the Mental Health Review Tribunal is also empowered to make forensic orders.
THE KILLING OF MANMEET ALISHER: AVOIDABLE OR INEVITABLE?
In late 2016, Manmeet Alisher, a young Brisbane singer/bus-driver was killed by Francis O’Donohue, a passenger who due to his Chronic Schizophrenia interpreted Alisher’s smile as a smirk that confirmed to O’Donohue that Alisher was ‘part of the conspiracy against him’. Consequently he set off a petrol bomb that he had carried onto the bus in his backpack.
O’Donohue was 50 years old, and had been a highly intelligent student who went on to complete two university degrees before working as a professional.
Why Was Alisher Killed?
Thought at first to be a race-hate crime, Alisher’s death became the subject of intergovernmental discussions between India and Australia. However it soon became clear that the more likely reason for O’Donohue’s actions was his longstanding chronic mental illness. Consequently O’Donohue’s offence were referred to the Queensland Mental Health Court, which has the role of determining whether at the time of an offence an alleged offender was of unsound mind and is consequently not able to be held criminally liable for the offence.
Of Unsound Mind but Subject to Forensic Order
With the assistance of forensic psychiatrists appointed by the Court, the Court found that O’Donohue was of unsound mind when he killed Alisher. However in view of O’Donohue’s Mental condition the Court found it necessary to make a forensic order to protect the safety of the community (defined as including from harm to other persons or property).
Types of Forensic Order
The Court was required to specify whether the category of the forensic order should be ‘community’ or ‘inpatient’. The Court can only make a forensic order (community) if satisfied that the person does not pose an unacceptable risk to the safety of the community. On the other hand a forensic order (inpatient) can only be made if the treatment and care needs of the patient, the safety and welfare of the person or the safety of others cannot be reasonably met if the forensic order category is ‘community’.
Where the Court finds that a forensic order is not warranted it may still make a Treatment Support Order if convinced that the community is at risk from the persons.
The Court was required to specify whether the category of the forensic order should be ‘community’ or ‘inpatient’. The Court can only make a forensic order (community) if satisfied that the person does not pose an unacceptable risk to the safety of the community. On the other hand a forensic order (inpatient) can only be made if the treatment and care needs of the patient, the safety and welfare of the person or the safety of others cannot be reasonably met if the forensic order category is ‘community’.
Where the Court finds that a forensic order is not warranted it may still make a Treatment Support Order if convinced that the community is at risk from the persons.
As O’Donohue was found to pose an unacceptable risk to others, the Court made a forensic order (inpatient). Had O’Donohue been made a forensic patient (community) he would have been treated in the community as an involuntary mental health patient but subject to strict supervision and treatment by the mental health service on terms more restrictive of his rights and liberty than a treatment support order (the involuntary treatment order made for non forensic patients).
In limited circumstances, the Mental Health Review Tribunal is also empowered to make forensic orders.
Significance of Non-Revocation Period
Both community and inpatient forensic orders are reviewed periodically, at which time their category may be changed and the order itself may be revoked by the Mental Health Review Tribunal.
The Tribunal may also make a Treatment Support Order as a step down provision for a Forensic patient, who may ultimately be placed on a treatment authority. However, in this case the Court stipulated a non revocation period, to ensure that O’Donohue would be detained in a mental health facility for 10 years, the maximum period of such detention able to be imposed by the Court under the Mental Health Act 2016 (Qld) in the case of a prescribed offence (the most serious offences, including murder).
The Tribunal may also make a Treatment Support Order as a step down provision for a Forensic patient, who may ultimately be placed on a treatment authority. However, in this case the Court stipulated a non revocation period, to ensure that O’Donohue would be detained in a mental health facility for 10 years, the maximum period of such detention able to be imposed by the Court under the Mental Health Act 2016 (Qld) in the case of a prescribed offence (the most serious offences, including murder).
SOME ISSUES RAISED BY THE CASE
This case raises a number of significant issues, which, by drawing on my 12 years of work as a member of the Western Australian and Queensland Mental Health Review Tribunals, I will endeavour to illuminate.
Should the Killing Have Been Permitted to Occur?
Friends and family of Alisher are calling for someone to be held accountable for his killing. They are outraged that O’Donohue should have been allowed to commit the offence. Perceiving the Court order as grossly inadequate they are also calling for justice to be done.
They question why someone with an 18 year history of chronic mental illness was free to move about in the community, particularly when the risks he posed to members of the public were real and substantial and had on a number of prior occasions been brought to the attention of the mental health service and police. For example, in 2011 O’Donohue had walked into a police station and surrendered a home made weapon saying that he was worried that he would kill someone.
Evidence also suggested that O’Donohue’s treatment in the community was less than successful. Concern that O’Donohue’s would not comply with prescribed medication led him to be placed on an Involuntary Treatment Order and injected with slow release anti-psychotics. His involuntary treatment order (now known as a treatment authority) was revoked in 2014. In 2016 he was discharged from treatment by the Mental health service and advised to continue treatment with his GP. His delusions are said to have intensified significantly at this time.
Has Justice Been Done?
If a loved one was killed by someone of unsound mind, our loss and grief would be just as great if the killer was a cold hearted contract killer. As only one of these killers is punished, that the Indian community is demanding justice is understandable. However in our legal system justice would not be deemed to have been done by jailing or punishing someone who lacked the mental capacity to commit an unlawful homicide.
The Mental Element of Crime
In response to calls for justice to be done, there is a need to consider our legal system’s concept of guilt and criminal liability. Most people know that a person is presumed not to be guilty unless it is established beyond reasonable doubt that they are guilty. Less well known is that what must be established is not only that the person ‘did it’ but also that they ‘did it’ with the mental state specified in the law alleged to have been broken. This may require proof that a person intended a particular outcome, was reckless or negligent, that they did not commit the act under lawful authority, or that they did not have a defence which excused the act.
One such defence is that at the time of the alleged offence a person was of unsound mind that caused them not to know what they were doing or that what they were doing was wrong. For this reason young children are also deemed not to be criminally liable either because it is established or presumed by reason of their age that they lack the capacity to know what they were doing or that what they were doing was wrong. In O’Donohue’s case, the Court accepted the psychiatrists’ assessment that due to his delusions, in O’Donohue’s mind, he was not killing a bus driver but instead was acting in self defence in line with his delusion.
One such defence is that at the time of the alleged offence a person was of unsound mind that caused them not to know what they were doing or that what they were doing was wrong. For this reason young children are also deemed not to be criminally liable either because it is established or presumed by reason of their age that they lack the capacity to know what they were doing or that what they were doing was wrong. In O’Donohue’s case, the Court accepted the psychiatrists’ assessment that due to his delusions, in O’Donohue’s mind, he was not killing a bus driver but instead was acting in self defence in line with his delusion.
What if Unfit to Stand Trial?
Even if found to be of sound mind at the time of the offence, a person may avoid criminal liability if found to be unfit to stand trial. This generally means not being able to understand the nature of a criminal trial, the role of the various participants, charges against them, or being incapable of instructing a legal representative. In such cases the Mental Health Court will declare the person temporarily or permanently incapable of standing trial and may place the person on a forensic order or treatment support order. A finding that a person is permanently unfit to stand trial generally also means that charges are not pursued any further. Forensic orders are reviewed at regular intervals by the Mental Health Review Tribunal and if the patient is found to no longer pose an unacceptable risk, they will (in the case of temporary incapacity) be referred back to stand trial, or where the incapacity to stand trial had been assessed by the Court to be permanent, the charges are not pursued any further.
Who Should be held Accountable?
‘Who should be held accountable for the fact that a person shown to potentially pose a significant risk to others has killed another person?’ is possibly the most pressing social issue flowing from this case.
A mentally ill person tends to come to the attention of mental health services when the person is brought in to an emergency ward, usually by the police, following an incident. Such an incident could be a serious offence, or it could be alarming behaviour in a public place or behaviour of concern to neighbours or family. The person may be referred to the Mental Health Service for involuntary assessment to determine whether a treatment authority should be made. In most cases such a person will be treated, medicated and sent on their way within a day or two. In many cases however, the treating team may feel that because the person refuses the required treatment and appears to pose a risk to themselves or others, involuntary treatment through a treatment authority is necessary. A Mental Health Review Tribunal (consisting of a psychiatrist, a community member, and a presiding lawyer) needs to agree with the treating psychiatrist before a person can receive more than urgent involuntary treatment either in hospital or in the community under a Treatment authority (inpatient) to treatment authority (community). While the treating psychiatrist may amend or revoke such an order, the Tribunal reviews such orders and may discharge the person, even against the wishes of the treating team.
If the incident involves a substantial crime, the charge may be referred to the Mental Health Court, and a forensic order considered.
A Matter of Staffing and Resources
In practice, the level of support, oversight and contact with treating psychiatrists and other mental health professionals that is available to an involuntary patient is dependent on available staffing and resources. Even in capital cities an involuntary mental health patient may only see a psychiatrist once a month. In remote regional areas, legal requirements as to regular examination are at times unable to be complied with as psychiatrists may only visit every few months. Consequently, on occasion, it is simply pointless for a tribunal to order treatment if hospital beds are not available or if the mental health service lacks the personnel to assist. Court orders, on the other hand, are more likely to be complied with even if through reassignment of resources.
Who should take responsibility? Mental health service and tribunals are hamstrung by laws which emphasise patients’ rights and freedoms. Equally, a dangerous patient may be out in the community because of a shortage of beds on mental health wards or because a lack of resources means that they cannot be provided the support and attention they require.
If every mentally ill person at some risk of being a danger to the safety of others were detained, we would need many new secure facilities to house the thousands of mentally ill persons living in the community who foreseeably could relapse and pose a risk to others before being treated. Nor would an overreaction be in the best interests of those patient’s who will never actually be a risk to the safety and well being of others.
Both Alisher’s family and friends and the government are looking for scapegoats. While the family’s clamouring for someone to be held accountable is understandable, the resulting governmental inquiry is unlikely to identify a solution but merely lead to a reshuffling of funding.
The ‘elephant in the room’ issue highlighted by this case is whether all potentially dangerous mental health patients should be treated as inpatients and not permitted to live and be treated in the community.
During the 1980s and 1990s Australian asylums were closed down partly in response to reports of inhumane accommodation and treatment, and also due to a change in thinking as to the rights of seriously ill mental health patients and whether they should be segregated from the wider community.
While undoubtedly commendable, the policies have not been accompanied by the significant resources required to ensure their success. The closing of asylums appears to have come at some expense to community safety and sense of security. The living conditions and lifestyle of the most chronically ill mentally ill people (who previously would have been detained in asylums) is also often such that it promotes a questioning of whether treatment in the community is really in their best interests.
The alternative need not be hospitalisation. Delusional or paranoid patients who may be in constant fear for their life would arguably benefit significantly from living in supported accommodation where they can be supervised, receive required treatment and thus have the risk they pose to others reduced. The O’Donohue case highlights this shortcoming of the current system.
Whether responding to risks posed by chronically ill mental health patients or sentencing criminal offenders, our policy of focusing on the offender or the threat posing mentally ill person, while clearly warranted appears to have taken precedence over protection of the community.
Moving mentally ill patients out of asylums was a recognition of their rights and intended to permit where possible treatment in the community. In most cases this has proven to be of great benefit to those concerned. However, where the move to community treatment is reflected in the presence on our streets and public transport of clearly unwell, unpredictable, angry, aggressive chronically ill mentally ill people, the message being conveyed is that the community should get used to this as we simply can’t lock up all these people.
The overriding consideration in the treatment of chronically ill psychiatric patients is to enable them to live as normal a life as possible in the community. This is highly commendable but only where the illness is such that it does not pose a risk to the health and safety of the community. Where it is not possible to virtually eliminate the risk while the ill person living in the community, the protection of the community should prevail and such steps be taken as are required to practically eliminate the risk. Supervised or secure accommodation should be provided. It should not require a person to die before the community is effectively protected.
I’m attracted to the Approach adapted by Buddhists who reject punishment as a form of redress, yet when dealing with a person who poses a threat to the community take whatever steps are necessary to ensure that the community is protected from the threat to the community – even if it means that the person is isolated from that community.
Responses
As part of its response, the government has promised to install barriers in buses to better protect bus drivers from similar attack. While likely to address the concerns of other bus drivers, it is a symbolic gesture which does not confront the actual risks. For example, a chronically mentally ill person may act in response to command auditory hallucinations. Simply being in the wrong place at the wrong time may turn a stranger into a target. Psychiatrists who assessed O’Donohue reported that it was Alisher’s smile rather than his ethnicity or work as a bus driver that made him a target for O’Donohue’s attack. On earlier occasions, it was people wearing pink shirts and women wearing black shoes that became a part of O’Donohue’s delusions. It is simply impossible to protect everyone from attacks by those with delusions or hallucinations that place others at risk. It would seem that there is nothing that members of the public can do or avoid doing to avoid bringing on or ‘provoking’ an attack.
Are the interests of mentally ill people necessarily best served through community treatment?
Are we really being kind by having chronically mentally ill patients live in the community or on the street and be at risk or pose a risk to the community. The risk of community treatment is not only to the community. Living in the community with the aid of limited assistance and medication supervision, mentally ill persons are placed at risk of relapse, being harmed or of offending and being detained in high security detention centres as forensic patients.
What must be borne in mind is that in many cases psychiatric treatment cannot guarantee that a person will cease to pose a risk. At best, in such cases, treatment and medication can reduce the risks or bring relapses and deteriorations to the attention of treating teams who may then hospitalise the patient – if resources permit.
The issues are complex and the answers difficult to find and unlikely to be universally approved. The points that I have raised are not the answer. At best they point to how risks associated with chronic mental illness could be reduced in our community.
There is a need for the government, health providers, the community and of course consumers of mental health services to consider the larger picture. Only an informed discussion will lead us to a solution in line with what we know of the treatment of mental illness.
This is one area in which the provision of adequate treatments cannot be determined by inadequate levels of government funding, unchallenged by a poorly informed public.
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