Opinion

Thaiday, RE [2017] QMHC 001: A review of the Mental Health Court syste

13th Jul 2017

Ms Raina Thaiday was a mother of seven with no criminal history or history of psychiatric illness.

In the early hours of 19 December 2014, Mrs Thaiday killed her seven children and her niece at her Cairns home. The event shocked the nation and was reported as one of the worst mass murders in Australia’s history. Mrs Thaiday was subsequently charged with eight counts of murder.

On 6 April 2017, the Queensland Mental Health Court accepted evidence of expert psychiatrists that:

‘at the time of the killing, Mrs Thaiday was suffering from a mental illness, paranoid schizophrenia, and that she had no capacity to know what she was doing was wrong. In fact, to her way of thinking at that time, what she was doing was the best thing she could do for her children; she was trying to save them.’[1]

The Mental Health Court accepted the defence of insanity had been established on the basis that at the time of the killings, Mrs Thaiday was of unsound mind. The criminal charges were discontinued.

This matter is a sad reminder of the devastating effects mental health issues can have on families and the community at large.

From a legal perspective, not many practitioners would have the opportunity to work in the Mental Health Court jurisdiction. A basic understanding of the Court’s powers and functions is beneficial for all legal practitioners.

In Queensland, a referral to the Mental Health Court can be made by an alleged offender or their legal representatives, the Director of Public Prosecutions, the Director of Mental Health, the Attorney General or the District or Supreme Court. The Mental Health Court is constituted by a Supreme Court Judge who is assisted by two Court appointed psychiatrists. The primary role of the Court is to determine whether an alleged offender was of unsound mind when they committed an offence and whether they are fit for trial.

Once the Court has determined an alleged offender was either of unsound of mind or not fit for trial (permanently), the Court discontinues the criminal charges and has the option of placing the person under a forensic order. A forensic order must be made in circumstances where the Court considers a forensic order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.

A person subject to a forensic order can be compelled to receive treatment and care on an involuntary basis and can also be detained in an Authorised Mental Health Service. Persons subject to a forensic order are reviewed by the Mental Health Review Tribunal (MHRT) on a 6-month basis. The role of the MHRT is to hear evidence from the person subject to a forensic order and that person’s treating team to determine if the conditions of the forensic order remain appropriate and what level of Limited Community Treatment is suitable given the individual’s level of risk to themselves and the community.

There are no time limitations placed on the duration of a forensic order and such orders will remain in place as long as they are deemed necessary.

The Mental Health Court placed Mrs Thaiday on a forensic order which restricts her Limited Community Treatment to escorted leave on the grounds of The Park Centre for Mental Health high security unit where she is likely to remain for many years under specialist supervision for intensive treatment and care.

For more information on the Queensland Mental Health Court, visit the Queensland Court's website at http://www.courts.qld.gov.au/.

 

Robert Boal is a barrister practicing at the Queensland Bar. He specialises in personal injury, employment and public law. Robert has appeared before the Mental Health Court and Mental Health Review Tribunal on behalf of the Queensland Attorney General.

 

 


[1]Thaiday, Re [2017] QMHC 001

 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Tags: Queensland Criminal justice Mental health Mental Health Court Mental Health Review Tribunal forensic order