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ABC (CTO/09/032) [2009] NZMHRT 58 (15 May 2009)

Last Updated: 31 October 2010

MENTAL HEALTH REVIEW TRIBUNAL

NO: CTO/09/032

IN THE MATTER An application pursuant to section 79 of the Mental Health (Compulsory Assessment and Treatment) Act 1992

AND

IN THE MATTER An application by ABC (DOB)

Tribunal Members: Ms CE Elliott

Ms P Tait

Dr M Earthrowl

Date of Application: 12 March 2009

Date of Hearing: 15 May 2009

Place of Hearing: Hospital

Previous Reviews: Nil

Responsible Clinician: Dr M

Counsel for Applicant: Mr R

Attending: The abovenamed

Mr B (other Health Professional)

REASONS FOR DECISION

INTRODUCTION

1. The Applicant ABC is a 25 year old New Zealander. ABC was transferred from the care of one Health Service in mid January 2009. There was some delay in transfer of Responsible Clinician. At the time of transfer, ABC’s status was an In-Patient Order on leave pursuant to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“the Act”).
2. By the time the paperwork arrived with the next District Health Board, the three month review pursuant to s.76 of the Act was overdue. The review was undertaken by Dr M on 11 March 2009. At the time of the review, Dr M was not ABC’s Responsible Clinician, but was due to become so.
3. At the time of his application to the Review Tribunal ABC was under an s.30 In-Patient Order. ABC is currently on an s.29 Community Treatment Order which is due to expire on 2 June 2009.

BACKGROUND

4. ABC was referred in 1988 to Child and Adolescent Mental Health Service (“CAMHS”) by his GP and remained in contact with that Service until 1999. ABC was diagnosed with Aspergers Syndrome and obsessive compulsive traits.
5. In December 1999 ABC was referred to CAMHS because of difficulties at school. He was trialled with Paroxetine which was reported to have some effect on his obsessive compulsive symptoms.
6. In August 2002 ABC commenced University, was living away from home and was discharged from CAMHS.
7. ABC was referred to Adult Mental Health Services by his GP on 9 September 2005 for review at ABC’s request, and to consider use of Dexamphetamine, which was declined as there was no diagnosis of ADHD.
8. ABC presented to his GP in early 2008, and then in June and July 2008 he had contact with the Crisis Team of the Mental Health Services on at least 4 occasions. It was noted that ABC was reportedly complaining of not sleeping, “hearing voices” for about 3 months, and experiencing a feeling of people being against him. He was commenced on Quetiapine.
9. ABC was reviewed by Dr S, psychiatrist, on 14 July 2008. In a letter to ABC’s GP, Dr S reports that ABC was not sleeping well and “he says he has been hearing voices. The voices he believes are his ex partners and well as his flatmate. The voices say bad things about him and at times threatened him as well. He told me that the voices may say it could be your last day today. Sometimes the voices may say we are going to smash your car. He told me that he hears these voices intermittently but he hears them on a daily basis and they get more intense towards evening”.
10. Dr S’s mental state examination recorded “neatly dressed and casual attire. He had limited rapport but good eye contact. His speech was limited and poverty of speech and thoughts. He would take quite a long time to answer any questions and at times he was not able to express himself adequately... He admitted to having persecutory delusions as well as delusions of thought insertion. He denied having any suicidal thoughts or any thoughts of harm to others. His mood was depressed and his affected was blunted. He admitted to auditory hallucinations as mentioned above. He has a good insight into his condition and is willing to comply with the medication”. The medical conclusion was that ABC had a psychotic episode, he was prescribed Olanzapine 10mg, and a follow-up appointment was arranged.
11. Following discharge ABC did not return for the follow-up. It was reported by his grandparents that he had discontinued the Olanzapine because of complaints of sleepiness.
12. ABC was assessed by the Mental Health Service on 7 August 2008 but at that time, was not considered to meet criteria to be admitted under the Act. ABC re-presented the following day having been transported by ambulance. ABC was admitted to Hospital on 8 August 2008. He was reportedly more secretive and withdrawn and not sleeping, eating or drinking properly. He was seen by the Mental Health Emergency Team and was reluctant to talk at all until his grandparents arrived, but then became more agitated and demanded to leave hospital. At the time of this admission, ABC did acknowledge hearing voices for a few months which he reported as making physical threats, as well as telling ABC he should harm himself. ABC reported a gradual descent in mental state since April 2008, but denied any disturbance of his eating or drinking. He was admitted to the Mental Health unit due to agitation, and psychotic features.
13. On admission, ABC is described as “A tall slender young man casually dressed, reasonable grooming. Agitated and hyper-vigilant; over intense eye contact. Would not allow anyone in the room to sit out of his direct vision. Minimally co-operative with the interview process and minimal of any engagement or rapport. Speech quiet with frequent long latency of responses suggesting possible thought blocking. Mood reported (by grandparents) as being low and withdrawn. Affect highly suspicious, blunted and at times incongruent. Thought process slow, evidence of thought blocking, grossly disorganised. ABC expressed systematised paranoid delusional beliefs regarding the IRD and socialist party to this grandparents although was unforthcoming regarding these at assessment. He did attempt the delusions of thought insertion and possibly of reference. ABC admitted to hearing voices although would give no further details regarding this. He was alert and orientated...”.
14. On admission, ABC was reported as remaining highly paranoid, guarded and suspicious of staff, and very reluctant to even allow basic physical observations such as blood pressure and heart rate to be taken. There was a referral to the Early Intervention & Psychosis Service (EIPS) and home leave was trialled. There were differing reports between ABC and his grandparents as to whether the leaves were successful. On discharge ABC continued to deny psychotic symptoms, either past or present, and remained highly reluctant to discuss stressors. He was uncomfortable discussing any personal or past experiences.
15. ABC was released from his compulsory status under the Act based on his reported agreement to meet voluntarily with staff.
16. ABC then moved cities and was lost to follow-up from the Mental Health Service however he was located by another family member when his grandparents were unable to contact him. This was followed by a medical admission to hospital.
17. ABC was admitted to hospital on 31 October 2008 for medical problems included dehydration, hypernatraemia, acute renal failure (pre-renal which resolved) and bilateral pneumonia resolving. The treatment was rehydration with IV fluids and antibiotics. ABC had reportedly stopped Paroxetine, but agreed to recommence taking this medication. ABC was assessed as not meeting the criteria to be admitted under the Act at that time. When EIPS attempted to follow-up, ABC refused to co-operate.
18. ABC was assessed by Dr A at the time of the medical admission to ascertain if the admission had a mental health component to it. The diagnosis at that time was reported as unclear given the context of Aspergers Syndrome, pervasive development disorder, OCD and anxiety. However, given the family history of psychotic disorder, on balance there were sufficient concerns to indicate the need for treatment. ABC was discharged when assessed as no longer meeting the criteria under the Act and was unwilling to remain in hospital for treatment, or take medication after discharge. He was discharged on Paroxetine and medications for hypertension and kidney disorder.
19. Dr A, psychiatrist in respect to the Mental Health diagnosis at that time stated “on today’s assessment I could not define a specific psychotic condition although there is a strong suspicion he may have one – either delusional disorder or schizophrenia. On the other hand, some of the features seemed very typical of Aspergers Syndrome and his difficulties interfacing with the world with co-morbidities. Depression and paranoia are also possible. However whether medication at this point would be useful or not, it will not be possible to determine without trying them and I do not feel we have quite enough grounds today to currently force treatment against his will. There is a possibility that the scenario of the year will repeat as he becomes pre-occupied, entrenched and even again psychotic”.
20. ABC was then seen by his GP on 12 November 2008 who reported that ABC was unco-operative and would not allow him to examine or let him near him. The GP reported that ABC’s grandparents were certain that ABC had not eaten or drunk anything over the previous 2 days. It was reported that ABC had spent long periods staring at the front cover of a book over the evening. The GP described “ABC is not the man he was a year ago”. There is further evidence that ABC was not taking sufficient fluid, would be virtually motionless for periods of time or stay in bed, ate poorly, did not attend to hygiene, had reduced mobility, and was barely speaking.
21. ABC was readmitted to the Mental Health Unit on 12 November 2008 with a recommendation to commence Risperdal Consta.
22. A section 16 review by the Court on 20 November 2008 declined to order ABC’s release. ABC was commenced on an injectable Risperdal Consta 25mgs fortnightly. There were reported signs of improvement after the first 3 weeks in terms of fluency of thought.
23. A hearing under the Act was held on 4 December 2008 and an In-Patient Compulsory Treatment Order made by the Court.
24. ABC was placed on leave from the hospital from 10 December 2008 to 24 December 2008 when he received his last injectable Risperdal Consta. A section 59 second opinion by a psychiatrist in respect to ABC’s Consent to Treatment supported continuation of Risperdal Consta for ABC.

EXAMINATION

25. Prior to the commencement of the hearing, Dr Earthrowl, the psychiatrist member of the Tribunal briefly examined ABC pursuant to clause 1 of Schedule 1 of the Act.

MR R’s OPENING SUBMISSIONS

Mr R submits:

26. ABC challenged both limbs of the Act. Under the first limb it was submitted that ABC had a long childhood history of various diagnoses, including Aspergers, which related to his behavioural difficulties, rather than any mental health issue. It was acknowledged however that the definition of mental disorder within the Act was wide and may encompass, for instance, depression.
27. In respect to the second limb of the Act ABC challenged that he had seriously diminished ability to care for himself. He has not needed to be under the Act, except for relatively short periods of time, he has not been on medication since December 2008, and is not currently on medication. ABC is living in a Lodge and attending University.

THE APPLICANT’S EVIDENCE

28. ABC did not wish to make a statement to the Tribunal.
29. On being questioned by a Tribunal member, ABC stated he disagreed with any diagnosis under the Act and stated he did not have a mental disorder, in particular he disputed that he was psychotic or paranoid, or had ever been so.
30. ABC stated he was living in a Lodge with shared facilities and prepared meals. He was studying for a post graduate honours degree. ABC stated he saw his renal specialist once a year (including earlier this year) and was no longer required to be on medication. This was subsequently confirmed by the medical notes on ABC’s file.
31. In respect to reports that ABC had a paranoid view that people were trying to harm him, ABC disputed this and stated that simply because he disagreed with the interviewer on his world view did not make him paranoid. ABC did believe that the assessment of him was politically motivated. He did not wish to comment on whether he considers the Mental Health Service is politically motivated.
32. ABC disputed that he heard voices in 2008, and specifically that the voices were telling him to harm himself. ABC’s view was that at the time he was depressed and he was unable to get employment, but did not think that his depression was affecting his functioning.
33. When asked about the concern that he was not eating or drinking sufficiently when admitted to hospital in October 2008, ABC stated that he was not eating or drinking for a number of days because he had flu which turned out to be pneumonia, and he had lost his appetite. The lack of fluid and food intake was not due to low mood or voices telling him what to do, but because he was physically unwell.
34. ABC disputed that he had delusional thoughts and advised that he had not been on any psychiatric medication since December 2008. ABC advised that he did not need treatment and that he was reluctant to see Mr B, his key worker, weekly. ABC advised that he had not been in touch with his family regularly.
35. If taken off the Act completely, ABC advised he would have no contact with the Mental Health Service and would not take any medication. ABC advised that if he had any medical problems he would see a GP at Student Health.
36. ABC’s view was that being under the Act was a severe restriction on him, and it was psychologically damaging to him. He stated he needed to be able to concentrate on his studies and that being under the Act was always at the back of his mind.

DR M’S EVIDENCE

37. Dr M met with ABC on two occasions on 11 March 2009 and 15 April 2009. At both interviews ABC was reportedly reluctant to speak or disclose any personal information. ABC was of the view that, as he had refused injectable Risperdal Consta and had not been forced to take the same, he was no longer subject to compulsory treatment. ABC advised he felt significant improvement since refusing medication.
38. ABC advised that he had commenced post-graduate studies at University, had obtained independent accommodation and was maintaining adequate physical health. The Tribunal heard no evidence to contradict this.
39. At the second interview with Dr M, ABC was only prepared to discuss the legality of his Compulsory Treatment Order. He advised Dr M briefly that his University study was progressing and that he had no problems. Dr M was of the view that ABC overall appeared more suspicious and less interactive verbally than the previous month. There was poverty of content of speech, with little spontaneous discussion. Dr M did not have access to thought content or perceptual experiences to comment on those.
40. The management plan for ABC with the Early Intervention Service was to attempt to engage ABC to allow monitoring of his physical and mental wellbeing through regular meetings with care manager, Mr B, and 4 to 6 weekly medical reviews with the psychiatrist. The medical decision was to not admit ABC to hospital in order to enable compulsory treatment of injectable Risperdal Consta to be administered. Initially ABC did meet with Mr B but that did not continue.
41. Dr M’s view is that ABC manifests an abnormal state of mind characterised by:
    • (a) Disorder of mood. Depressed mood, particularly in 2008 as noted through the Mental Health Service notes.
    • (b) Disorder of perception. Auditory hallucinations of command and derogatory content, described by ABC in early 2008 to his GP and again to the assessing psychiatrist in July 2008.
    • (c) Disorder of volition. Through 2008, particularly from August through to October, accounts of significant impairment to fluid and food intake which seriously jeopardised his physical health, ie; in September 2008 required admission to hospital for dehydration and pre-renal failure. Dr M’s view is the nature of the abnormal state of mind is intermittent.
42. Dr M considers that ABC’s “abnormal state of mind is to such a degree that it seriously diminishes the capacity of ABC to care for himself, in that: there was clear evidence that ABC was unable to sustain his physical wellbeing in 2008 without significant intervention. He remains adamant that the accounts as detailed in the files by the ... Service, and of the medical admission to ... Hospital in September/October, are not accurate and he disputes them. However, he cannot provide any other evidence as to the chain of events and consequences. He also refutes any need for anti-psychotic medication or of any benefit from the medication. Overall, he thus exhibits marked lack of insight which is seriously impairing his capacity to care for himself”.
43. On questioning from the Tribunal, Dr M acknowledged she saw her main role as trying to engage with ABC and see if he would work with the Mental Health Service. It was agreed by the medical team that they would not force ABC to take medication if he agreed to meet regularly with the team, unfortunately ABC had not met regularly with them. Dr M stated that the main management plan was to monitor ABC’s physical and mental health and they could not do so unless he was under the Act as he would not co-operate. Dr M acknowledged that they were struggling to deal with ABC as they were trying to assist him to engage voluntarily but that had not worked. Dr M agreed that ABC’s diagnosis was complex because of the Aspergers and the physical problems.
44. On cross examination from Counsel, Dr M acknowledged that ABC had not had any contact with the Mental Health Service between 2002 and 2008, and that ABC was attending University and was presumably functioning reasonably well. It was acknowledged by Dr M that the 2005 referral by the GP had been at ABC’s request, as had the referrals in June/July 2008.
45. Dr M agreed that at times her colleagues had considered that ABC did not meet the criteria under the Act including during the medical admission in October 2008. In June and July 2008 when ABC self-referred there was no formal thought disorder, no suicidal or homicidal thought and no need for a compulsory order.
46. Dr M was concerned that in August 2008 ABC was not as open as he had been previously, although there was no observation of psychosis. Dr M also agreed that ABC did not meet the criteria under the Act during his medical admission in October 2008.
47. Dr M acknowledged that it would be difficult for the Mental Health Service to manage ABC. She agreed ABC had not had any medication since December 2008/January 2009 and that he had gone through the stressful Christmas/New Year period, moved to another city, started University and not attended follow-up meetings, yet there had been no further admissions.
48. Dr M’s continuing concerns were:
    • (a) That there had been admissions in 2008 with psychotic symptoms, and ABC was currently unwilling to disclose his experiences to see whether the psychosis still existed.
    • (b) By October 2008, ABC had serious physical illness including dehydration which was highly unusual in a young healthy person.
    • (c) Both grandparents and the GP had noted significant detrimental changes in ABC in the prior 12 months.
    • (d) ABC was difficult to assess, and further assessment would be needed to help the medical personnel understand what was happening for ABC, and how to ensure the problems of 2008 did not recur.
    • (e) Aspergers does not explain ABC’s inability to engage. ABC is at risk of another major psychotic episode for the next two years.
49. Dr M would like to follow-up ABC during 2009 to ensure he did not have another major psychotic episode.
50. On questioning by the panel, Dr M considered that ABC suffered from disorder of mood, characterised by depression and disorder of perception characterised by spontaneous disclosure of voices. In respect to volition, there may be impairment in his ability to take sufficient food and fluid to adequately support life function. ABC was not able to convincingly describe why he had stopped eating. Dr M acknowledged however, that if ABC did not eat because of loss of appetite through physical illness that was not a disorder of volition.
51. In respect to the second limb of the Act there was no information available to the Tribunal regarding the admission to hospital on medical grounds in October 2008 showing a nexus between an abnormal state of mind and ABC’s physical unwellness. Dr M acknowledged that she could only hypothesise as to why the physical neglect occurred. It could be:
    • (a) Hallucinatory voices having control over eating and fluid intake.
    • (b) A persecutory element, a fear of eating or drinking.
52. Dr M acknowledged that there was no previous evidence of either of the above, and that there was a possibility that ABC was simply physically unwell. Dr M stated it was difficult to know which might have come first.
53. Although the discharge notes on 24 December 2008 stated that there was a major improvement in ABC’s mental state after only 3 weeks after receiving Risperdal Consta, Dr M acknowledged that it was unlikely that any major improvement would have occurred in that timeframe. Dr M stated that the trial of Risperdal Consta from mid November 2008 to 10 January 2009 would have barely been adequate to result in an improvement.
54. On ascertaining from the medical file that ABC was correct in his statement that he was no longer required to take renal medication, Dr M acknowledged that it reduced one of her concerns. The remaining concern was that there was a risk factor of 60% to 80% of people experiencing another psychotic episode within the first year, and onwards into the second year, after the initial episode.

MR B

55. Mr B’s view was that it was sometimes futile to compel treatment on unwilling recipients, but that he has a duty of care as a nurse to try.
56. Mr B was unsure if he continued to support treatment orders under the Act, as ABC was not co-operating. ABC would not, for instance, allow Mr B to visit him at the Lodge, and therefore Mr B could not really gauge how well things were going for ABC.

COUNSEL’S SUBMISSION

57. Counsel raised concern about:
    • (a) The s.76 assessment not being undertaken by the Responsible Clinician, or on time.
    • (b) The Judicial Decisions of November 2008 and December 2009 not referring to ABC’s Aspergers and the effect that may have on his interaction with the world.
    • (c) The second opinion not being independent.
58. Counsel submits that ABC does not meet the first or second limbs of the Act. In respect to the second limb, ABC is not a serious risk to himself or others. The issue is seriously diminished capacity to care for himself.
59. The only incident when diminished capacity for self care potentially occurred was behaviours which resulted in the medical hospital admission on 1 to 5 October 2008. At that time two psychiatrists saw ABC on separate occasions, one in hospital and one after release, and both concluded that ABC did not meet the criteria of the Act. ABC was not a serious risk to himself or others, and did not have seriously diminished capacity to care for himself.
60. ABC has been living in the community since 10 December 2008. There may be general concerns by Dr M regarding his mental wellbeing, but ABC has not come to the attention of the Mental Health Service with more acute psychiatric concerns even while he has not been on medication.
61. ABC’s view of the detrimental effect that being under the Act has on him needs to be taken into account.

THE TRIBUNAL’S DECISION

62. Counsel for ABC has raised several legal issues:
    • (a) Whether deficiencies in the s.76 review on 11 March 2009 nullified the Compulsory Treatment Order;
    • (b) Whether the Court’s decisions of 20 November and 4 December 2008 should be considered a nullity on the basis that ABC’s Aspergers syndrome was not stated to have been considered in either decision;
    • (c) Whether the second opinion psychiatric assessment pursuant to s.59(2)(b) of the Act should have been undertaken by the same psychiatrist who appeared as the Responsible Clinician in both the s.16 hearing on 20 November 2008 and the application for a Compulsory Treatment Order on 4 December 2008. The psychiatrist second opinion is dated 24 December 2008.

S.76 review

63. The first legal issue is whether the s.76 Clinical Review of ABC was flawed on the basis that:
    • (a) It was not within time (s.76(1)(a)); and
    • (b) It was not undertaken by ABC’s then Responsible Clinician (s.76(1)).
64. Section 76 of the Act states:
    76. Clinical reviews of persons subject to Compulsory Treatment Orders

(1) The Responsible Clinician shall conduct a formal review of the condition of every patient, other than a restricted patient, who is subject to a Compulsory Treatment Order [or subject to an order under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003]—

(a) Not later than 3 months after the date of the order; and

(b) Thereafter at intervals of not longer than 6 months.

(2) For the purposes of any such review, the Responsible Clinician shall—

(a) Examine the patient; and

(b) Consult with other health professionals involved in the treatment and care of the patient, and take their views into account when assessing the results of his or her review of the patient's condition.

(3) At the conclusion of any such review, the Responsible Clinician shall record his or her findings in a certificate of clinical review in the prescribed form, stating—

(a) That in his or her opinion the patient is fit to be released from compulsory status; or

(b) That in his or her opinion the patient is not fit to be released from that status.

65. Although s.76 may appear to be mandatory in that it states the Responsible Clinician shall undertake the review, Court decisions have stated that the failure of the Responsible Clinician to carry out a review does not nullify an existing Compulsory Treatment Order.
66. In Re E (Mental Health) 1999 18 FRNZ 542 where a Responsible Clinician could not conduct a review because the patient had left the area at the time of the review, it was held that the failure to hold a s.76 review was not fatal to the Compulsory Treatment Order.
67. In Re E (Mental Health) (ibid) the early case of Howard v Bodington (1877) 2 PD 203 was referred to. There was a discussion on the difficulty in classifying provisions as mandatory or directory where words such as “shall” and “may” are used. The Courts have chosen to look at the true effect of the legislation to determine whether a provision is to be regarded as mandatory or obligatory on the one hand, or discretionary or directory on the other. In Re E (ibid) His Honour held that it could not be inferred from the context of the provisions that the legislature intended a Compulsory Treatment Order to expire “by default because of the failure to carry out a six monthly review”.
68. In the decision of Re Hutt Valley Health (2004) 24 FRNZ 780 the Court also held deficiencies in the s.76 review did not invalidate the Compulsory Treatment Order. Whether the patient suffered any real prejudice by the non-compliance with the requirements of the Act was another factor considered.
69. The Tribunal finds that although the s.76 review was out of time, and was not undertaken by ABC’s then Responsible Clinician, the deficiencies do not affect the validity of the current Compulsory Treatment Order.

Reference in Court Decisions

70. Counsel submits that the judicial decisions were in some way flawed as the Judges had not turned their minds to the effect of Aspergers on ABC’s presentation. The Court decisions had rights of appeal available to them if ABC was unhappy with the decision although he was not represented at the time.
71. Although it may be ideal in a Judicial Decision for all aspects to be canvassed, the practical reality is that the Judge is only required to answer a limited number of questions, in making a decision.
72. It is not the role of this Tribunal to comment on the earlier Judicial Decisions in respect to ABC as they do not impact on the Decision the Tribunal must make.

Second Opinion

73. Commonsense and fairness may state that for a second opinion to be of value, and to be perceived as being independent, it should not be undertaken by a psychiatrist who has been the patient’s Responsible Clinician in the past.
74. The Tribunal finds however that the second opinion is not of direct relevance to the decision the Tribunal needs to make in respect to ABC.

Mental Disorder

75. The Tribunal’s first task is to ascertain if ABC has a mental disorder under the Act.
76. The Tribunal finds that ABC has a mental disorder or abnormal state of mind, characterised by intermittent disorder of mood (including depressed mood in 2008). The Tribunal also finds that ABC had a disorder of perception with auditory hallucinations of command and derogatory content in early 2008 and again in July 2008. The Tribunal did not find there was sufficient evidence of a disorder of volition relating to fluid and food intake.
77. Having concluded that the applicant had an abnormal state of mind of an intermittent nature, with disorder of mood and perception, the Tribunal then has to consider whether or not the applicant’s abnormal state of mind is of such a degree as to give rise to serious danger to the health and safety of himself or others, or whether he has seriously diminished capacity to take care of himself.
78. In respect to the second limb of the Act, the Tribunal finds that ABC’s abnormal state of mind does not give rise to serious danger to the health and safety of himself or others. No evidence in this regard was offered. The Tribunal therefore needs to consider whether the applicant’s abnormal state of mind seriously diminishes his capacity to self-care.
79. The incident which is given as an example of the applicant’s seriously diminished capacity for self-care is ABC’s failure to take sufficient fluid and food over a period of time which lead to his medical admission into hospital on 31 October 2008 with dehydration hypernatraemia, acute renal failure (pre-renal which resolved) and bilateral pneumonia.
80. Dr M acknowledged that there was no direct evidence of the nexus between abnormality of the mind and ABC’s physical unwellness. Dr M could hypothesise that perhaps ABC had been physically neglectful due to voices controlling his eating or fluid consumption, or a persecutory element namely a fear of eating or drinking, but there was no evidence of either having occurred previously or at the time of the medical hospital admission on 31 October 2008.
81. Dr M also acknowledged that two psychiatrists had seen ABC around the medical hospital admission, one while ABC was in hospital, and one shortly after discharge. Both psychiatrists had concluded that ABC did not meet the criteria under the Act at either time.
82. Quite properly Dr M takes a conservative approach to her assessment, recognising that her assessment of ABC is not yet complete due to his lack of co-operation. Dr M would like the opportunity to undertake further assessment of ABC. Dr M acknowledges however that to date ABC is highly resistant to any further interaction with the Mental Health Service, and therefore the chances of success are perhaps more limited than may otherwise be. Dr M acknowledged that it was almost a waiting game to see if ABC relapses.
83. Although ABC was referred to CAMHS from 1988 to 1998 and again in 1999 to 2002, in 2002 ABC was discharged from CAMHS and moved to independent living and to attend University.
84. From the evidence before the Tribunal, ABC advises that he is currently living at a Lodge with 3 meals a day provided, it is accommodation which is otherwise independent. He is reportedly studying towards a post-graduate honours degree at University. He has not taken any medication for mental health since 10 January 2009, and is currently not required to take any medication for his renal problems, which he describes as being “in remission”.
85. Dr M is rightly concerned that ABC may be one of the 60% to 80% of people who suffer a psychotic episode where a recurrence occurs within 1 to 2 years of the initial incident. The Tribunal finds however that although it may be desirable for ABC to be monitored, the Tribunal’s role is not to comment on medical treatment, but simply to decide whether the applicant meets the criteria under the Act.
86. ABC has had a long period of time from 2002 to 2008 when he had no contact with the Mental Health Services. He has not been on medication for some 4 months, and to the best of the Tribunal’s knowledge has not relapsed, but has functioned in independent living and in a University study setting.
87. The Tribunal also finds that it cannot definitively state that there was any nexus between the abnormal state of mind and ABC’s physical unwellness in October 2008. ABC acknowledges that he stopped eating and drinking but states it was because he was feeling physically unwell, and he did in fact have pneumonia. ABC denied that he was not eating or drinking sufficiently, for any other reason and there is no evidence to refute his assertion.
88. The Tribunal therefore finds that although the first limb of the Act is met, there is no cogent evidence that ABC’s abnormal state of mind currently seriously diminishes his capacity to self-care. The Tribunal therefore finds that ABC is fit to be released from his compulsory status.
89. The Tribunal extends its best wishes to ABC for his success in his education, and his wellness into the future.