The Use of Monitoring Conditions (GPS Tracking Devices)Re CMX[2014] QMHC 4

In July 2014 the Queensland Mental Health Court delivered its first decision concerning an appeal against the imposition of a monitoring condition on a Queensland forensic mental health patient: Re CMX [2014] QMHC 4. Re CMX concerned the use of a GPS tracking device on a forensic mental health patient in circumstances where clinical evidence from the treating psychiatrist was to the effect that such a device was not warranted. This case review provides a summary of the facts and findings of Re CMX and details the guidance the Court gave as to the significant consideration, justification and recordkeeping required for a decision to impose a monitoring condition.

Keywords: forensic; GPS; mental health; monitoring condition; Queensland

On 7 March 2013, the Queensland Mental Health Commission Bill 2012 (the Bill) was passed. The Bill established the Queensland Mental Health Commission and amended the Mental Health Act 2000 (the Act). Controversially, and against the submissions and evidence made on behalf of medical practitioners, the Bill inserted s 131A into the Act, which enables the Queensland Director of Mental Health to require a condition that allows a treating health service to monitor a patient's location while on limited community treatment (colloquially known as a GPS tracking device).

On 18 July 2014, the Queensland Mental Health Court delivered its decision with respect to Re CMX.[1] This appeal from the Tribunal, the first of its kind to be heard by the Court, found that there was no evidence to establish a proper basis for the imposition of a monitoring condition on CMX's limited community treatment under s 131A of the Act. It further found that the imposition of the condition was detrimental to CMX's ability to enjoy limited community treatment and did not comply with the principle of least restrictive practice.[2] The Court set aside the monitoring condition.

The published decision of Re CMX is significant because Queensland Mental Health Review Tribunal decisions are not published, and the Queensland Mental Health Court does not publish the majority of the decisions it makes on appeal from the Tribunal. As such, while other appeals concerning the use of monitoring conditions may go before the Court, there is no guarantee that the decisions will be publically available. For this reason, and because of the guidance given by the Court, a detailed exploration of the Re CMX decision is both warranted and necessary.

While this case note seeks to review Re CMX, because of the sensitivities surrounding this controversial issue and the prohibition of publication provision as contained in s 525 of the Act,[3] the review will generally rely upon the words of the decision rather than providing a critique or opinion of the decision itself.

Some years ago, the Mental Health Court found that CMX was suffering from unsoundness of mind at the time of committing the offences subject to the reference to the Court. CMX was placed on a forensic order that required detention at an Authorised Mental Health Service.[4] The forensic order was confirmed at subsequent reviews by the Mental Health Review Tribunal ('the Tribunal') along with various conditions of limited community treatment that allowed for different types of leaves of absence. While on leaves of absence there were no reported breaches by CMX.

In 2013, a condition was imposed under the new s 131A that CMX was to wear a GPS monitoring device while accessing his leave. That condition was continued in 2014. The decision of the Court provides that:

[w]hilst [CMX] had been compliant and had adhered to the terms of the order, the [Respondent] decided not to remove the condition 'having regard to the historic and static risk factors; most notably [CMX's] history of illicit substance use and non-compliance'.[5]

The ability of CMX to access leaves of absence was restricted as a result of the limited number of staff allowed to attach the device and difficulties in accessing the monitoring equipment.

In early 2014, CMX appealed a decision of the Tribunal confirming his forensic order and declining to revoke or amend a monitoring requirement imposed under the new s 131A. While an application under s 203(2)(f) of the Act had not been made with the Tribunal to remove the monitoring condition, evidence was given as to the effect and appropriateness of the condition. In particular, the patient's treating psychiatrist gave evidence that CMX did not amount to such a risk as to require a monitoring device and was no absconding risk. The doctor gave evidence that the condition was unnecessary and that it was creating frustration for CMX.

The Tribunal confirmed the forensic order with limited community treatment approved. It did not make any order with respect to the monitoring device condition. As such, while the Tribunal declined to make a monitoring condition, the monitoring condition imposed under s 131A continued.

An appeal to the Court is by way of rehearing, in which the appeal is determined by reference to the evidence available at the time of the hearing of the appeal. The Court has the power to confirm or set aside the decision of the Tribunal. If the decision of the Tribunal is set aside, the Court is empowered to make a decision that is available to the Tribunal on review.[6]

One of the Respondents to the appeal filed a report which provided that CMX's case contained 'a number of high risk or contentious issues, community interest and a high likelihood of attracting police attention if absent without permission'. The written decision of the Court describes that:

The [Respondent] considered the static or historical factors in respect of [CMX], and the seriousness of any offending that may occur should he relapse, were of such significance that they outweighed the immediate risk assessment provided by the treating psychiatrist.[7]

CMX's treating psychiatrist gave evidence that:

[CMX's] mental illness was stable, and [CMX] continued to show good insight into the existence of [CMX's] illness and the need for treatment. [CMX] was compliant with all aspects of [CMX's] treatment plan. [CMX] behaved responsibly and proactively, and participated in rehabilitation activities. [CMX] did not represent a high risk to others. [CMX] had not attempted to abscond from any mental health facility in the past. [The treating psychiatrist] assessed [CMX's] current risk to others, and of absconding, as low.[8]

The treating psychiatrist further opined that:

The treating team have found no clinical benefits of [CMX] wearing the GPS monitoring device. The treating team have not found any evidence the use of a GPS monitoring device is beneficial in mental health treatment or risk management. [CMX's] mental state has been stable and he has been compliant with the LCD [sic –LCT (Limited Community Treatment)] conditions of his leave for the past three years without incident.[9]

Ultimately, and importantly, the treating psychiatrist opined that:

there was no clinical indication for the use of a GPS monitoring device in the Appellant's management, or in the prevention of risk. Not only did such a device add nothing to [CMX's] clinical management or risk reduction, it had the effect of hindering his rehabilitation. It was a source of stress, a potential cause for stigma and a restriction on [CMX's] graduation [of leave].

There was also no logic in applying for a GPS monitoring condition in [CMX's] case. The Appellant's offending history did not indicate its necessity. [CMX] does not have a history of predatory sexual assaultive behaviour in the community, or any particular situations that could be effectively monitored by GPS devices. As there was no clinical indication or utility in such a condition, [the treating psychiatrist] opined the application of GPS monitoring to the Appellant exceeded [CMX's] clinical needs.[10]

The Mental Health Court sought its own report from a forensic psychiatrist, who, for confidentiality and publication purposes will be referred to as the 'reporting psychiatrist'. The reporting psychiatrist assessed CMX for the purpose of providing a report to the court. The reporting psychiatrist reported that CMX had described that:

[CMX] had been forced to wear the device effectively 24 hours per day, and to take responsibility for charging it, because the authorities were unable to guarantee replacing [CMX's] unit ... There would otherwise be times where [CMX] had been unable to access such leave because of technical issues in regard to applying the device.

The consequence of [CMX's] obligation to charge the device was that the Appellant had to spend two hours a night lying stationary charging the unit whilst [CMX] was wearing it. The Appellant found wearing the device a mental burden. [CMX] worried [CMX] may accidently send off some kind of alert when getting dressed, or undertaking such similar innocent activity. [CMX] was also worried about the stigma attached to wearing the GPS device in public. [CMX] believes people would unfairly regard [CMX] as a paedophile or serial sex offender.[11]

The Assisting Psychiatrists to the Court[12] advised that the Court should accept the opinions provided that the monitoring condition was punitive and lacked utility when applied to CMX. The Assisting Psychiatrists further advised that the monitoring condition was 'counter productive to good therapeutic care, and the principle of least restrictive measure'.[13]

At the commencement of the appeal hearing, one of the Respondents conceded that the evidence that was before the Tribunal and the Court did not establish that CMX posed an unacceptable risk if the monitoring condition was removed from the order of limited community treatment. Further, both Respondents on appeal conceded that the material placed before the Tribunal at the time it made its decision did not support a finding that the monitoring condition had been appropriately applied to CMX.

The Court found that the Tribunal ought to have revoked the monitoring condition as the evidence placed before it did not provide any justification for it to be continued.[14] The Court also found that based on the evidence before it, there was no 'proper basis' for a monitoring condition to be imposed,[15] and that the imposition of such a condition was detrimental to the ability of CMX to have the benefit of staged and graduated limited community treatment, thus not complying with the principle of least restrictive practice.[16] The appeal was allowed and the monitoring condition set aside.[17]

In its decision, the Court provided guidance regarding the exercise of the s 131A power to impose a monitoring condition. Specifically, the Court found that it was not a proper use of the power to impose a monitoring condition affecting leaves of absence already approved by the Tribunal when the condition ought to have been ventilated before the Tribunal at the review hearing and considered in light of a review of limited community treatment. This, of course, does not apply when 'there is an identified material change of circumstance after the Tribunal hearing justifying the exercise of the ... discretion'.[18]

In the event the above 'identified material change' exception applies, the Court found that a record must be kept of the evidence used to form the conclusion that a monitoring condition is required for the particular person. The Court also detailed that relevant matters in making such a decision will include:

• relevant change in circumstances and the relevance of those changed circumstances to risk factors;
• that without the monitoring condition the risk factors are unacceptable;
• the manner in which the monitoring condition represents least restrictive practice; and
• that there are no other ways to render the unacceptable risk acceptable.[19]

Further, when consideration is given to imposing a monitoring condition, the impact on the patient must be given specific consideration. In ensuring that the impact on the patient is considered as part of the decision-making process, the following should be considered and evidenced:

• Has the patient been given the opportunity to raise any concerns about the imposition of a monitoring condition?
• Has the treating team been consulted and provided with the opportunity to manage any risks considered to be unacceptable?
• What are the benefits of a monitoring condition regarding the risks considered to be unacceptable?
• What is the practicality of the monitoring condition?
• What is the likely impact of the monitoring condition on the patient's mental health?
• What is the likely impact of the monitoring condition on the patient's ability to access limited community treatment?[20]

This represents a significant curtailing of the s 131A power in that, in the absence of an 'identified material change of circumstances after the Tribunal hearing', it would be an improper use of power if a monitoring condition was imposed on a patient outside of a Tribunal hearing. In the event that the exception exists, significant consideration, justification and recordkeeping for the decision to impose a monitoring condition is required.

In allowing the appeal, the Court also provided guidance to the Tribunal when it reviews a monitoring condition. Specifically, the Court found that while an application had not been made by CMX for the monitoring condition to be revoked, the appropriateness of the condition was raised on the evidence before the Tribunal when it considered whether the Tribunal itself should or should not impose a monitoring condition. When the Tribunal decided that imposing a monitoring condition was not required, it was also obliged to remove the monitoring condition imposed under s 131A. The Court found that by allowing the monitoring condition imposed under s 131A to continue, the fundamental principle of least restrictive practice was breached.[21]

Finally, the Tribunal, in considering the appropriateness of a monitoring condition imposed under s 131A, must also take into account the patient's background and circumstances in which the condition was imposed in considering whether the concept of unacceptable risk justifies the making of such a condition.[22]

The guidance given by the Court as to the consideration, use and review of the s 131A power places the patient's rights and interest front and centre of the decision-making process and, significantly, curtails the use of the s 131A power outside of a Mental Health Review Tribunal hearing, thus providing for a greater level of oversight.

The decision of the Re CMX is important as it is the first decision of the Queensland Mental Health Court to address the use of GPS tracking devices on mental health patients. Indeed, the author is unaware of any other case in Australia to address such a specific and contentious issue. It is particularly concerning that the first case to be heard found that there was no evidence to establish a proper basis to impose the monitoring condition on CMX and that the imposition did not comply with the principle of least restrictive practice.

This decision also provides significant guidance to mental health professionals, lawyers, patients and patient advocates on the factors to be taken into account in exercising the s 131A power, the recordkeeping and justification of the decision required, and the review of such a condition by the Queensland Mental Health Review Tribunal.

Given that the current Queensland Mental Health Act is expected to be repealed and replaced in the near future, it is important that this decision be taken into account in both the drafting process of the new Act and the policy formulation surrounding it. In such a process, serious consideration should be given to whether the s 131A power should be abandoned altogether, or retained with significant curtailing of the power and more stringent oversight and reporting provisions.

Pursuant to s 525, leave of the Court was sought and granted for the publication of this case review. The author expresses her gratitude to Justice Boddice, President of the Mental Health Court, for granting such leave.