Re Anita (No 3)

This case raises a question about the nature and exercise of the court’s parens patriae jurisdiction.

It arises in the context of the transition of responsibility for the young person known for the purposes of these proceedings as “Anita” from the Minister, Department of Family and Community Services, to the Public Guardian.

Anita is now an adult, as she attained the age of 18 years on 28 March 2016.

For many years, Anita has suffered from significant disabilities. She has a developmental disability, with extremely limited insight into her chronic self-harming and poor impulse control. She has also been diagnosed with chronic complex post-traumatic stress disorder, and disruptive mood dysregulation disorder.

As a consequence of her disabilities, Anita’s conduct has involved many forms of antisocial and inappropriate behaviour; but most significantly, she has a propensity to engage in frequent and unpredictable acts of self-harm, and behaviour that puts her at substantial physical risk, and on occasions, mortal risk.

In around December 2012, the Children’s Court of New South Wales made an interim order giving the Minister parental responsibility for Anita. The Children’s Court then made a final order on 12 August 2013, allocating parental responsibility for Anita to the Minister until she attained the age of 18 years.

Anita was placed into various forms of care, but those responsible for her care were unable to control her escalating forms of self-harm and risk-taking behaviour.

On 22 August 2013, on the application of the Minister, and the Director-General (now Secretary) of the Department, I made orders for the secure accommodation of Anita, and consequential orders. Those orders authorised the Secretary to detain Anita at secure premises and to use reasonable force, if necessary, to so detain her. The Secretary was authorised, using whatever assistance the Secretary deemed appropriate, to take Anita to the premises, and the staff employed by the Secretary were authorised to use reasonable force if necessary, to restrain Anita in order to prevent her from injuring herself or others, and to administer medication in accordance with medical advice. Further, the Australian Federal Police and the New South Wales Police were authorised and directed to locate and recover Anita and deliver her to the Minister.

The orders were made on the basis of evidence that justified a real fear that Anita was at imminent risk of death, as a result of her self-harming and risk-taking behaviour; primarily as a result of her attempts to strangle herself with electrical cords, shoelaces and other ligatures around her throat; and her propensity to run across busy roads without regard to the movement of the traffic and her own safety.

The matter has regularly been returned to the court for report by the Secretary and for supervision by the court, and on each occasion until recently, the court has made orders extending the original orders.

The orders have involved the Secretary providing secure accommodation for Anita at Sherwood House, which is a six bedroom house, set up as a secure therapeutic residential facility. The staffing includes carers and security staff, with an on-site manager. Sherwood House engages a specialist behavioural support agency, which develops individual behaviour management plans for each resident, and those plans are adjusted as the needs of each resident changes over time. The plans provide for residents to move through phases with the intent that in due course, they will attain a level of insight, self-control, and behavioural modification that would permit them to live in the community free of the strict constraints provided at Sherwood House.

Anita’s propensity to engage in self-harm and other antisocial and inappropriate behaviour has unfortunately continued from time to time. Anita has been hospitalised on many occasions. Anita’s behaviour has frequently required that she be placed under 24-hour line-of-sight supervision for her own protection.

Notwithstanding the sterling efforts of all concerned in maintaining Anita’s welfare, the hope that she could be cured of the behavioural patterns that have put her at such risk has not been realised.

In response to the impending attainment by Anita of her 18th year, the Secretary explored the institutional arrangements that might be able to be put into effect to ensure Anita’s long-term care and security. That involved consultations between officers within the Department of Family and Community Services (FACS) who were formerly responsible for the care of Anita and officers of Ageing, Disability and Home Care (ADHC), also within FACS.

Briefly, arrangements were made for supported accommodation for Anita in a facility in the suburb of Ruse, near Campbelltown, which has been reconstructed in a number of ways to reduce the opportunity for Anita to find means of hurting herself. The supported accommodation is staffed by employees of ADHC who have special training to provide care and support for persons with Anita’s disabilities and behavioural problems.

A special funding package was arranged through The Disability Trust to fund the arrangements, including the supported accommodation, which were thought by expert officers of FACS to be necessary for the long-term protection of Anita.

On 15 March 2016, I made orders extending the control and secure accommodation orders, but only up until 28 March 2016, when they lapsed.

On 21 March 2016, the New South Wales Civil & Administrative Tribunal (NCAT) made a guardianship order in respect of Anita in favour of the Public Guardian. The order was made for a period of 12 months. It is a limited guardianship order giving the Public Guardian custody of Anita to the extent necessary to carry out functions which include the following:

The guardianship order it is subject to the following conditions:

Anita’s guardian is Principal Guardian Ruth Guthrie from the NSW Office of the Public Guardian, Western Region.

For some time before she reached the age of 18 years, while still living in the secure accommodation, Anita expressed the preference to return to live with her mother and sister, at their home outside Sydney. Anita’s mother shared that aspiration.

Anita moved to her supported accommodation placement in Ruse on 30 March 2016.

On 8 April 2016, Anita unilaterally left the supported accommodation and travelled to her mother’s home. Anita was returned to the supported accommodation on 11 April 2016. On 24 April 2016, Anita again left her placement and travelled to her mother’s home. From that time onwards, Anita has spent most of the time living at her mother’s home, or occasionally with her maternal grandparents.

While she was living in the supported accommodation, Anita attempted self-harm or 2, 3, 6, 11, 13, 14 and 24 April 2016. On 14 April 2016, after she attempted self-harm by tying shoelaces around her neck, Anita was admitted to the acute mental health unit for youth at Campbelltown Hospital. On 23 April 2016 Anita ingested hydrogen peroxide with water, and inserted a straw and a razor into her body.

Anita has remained dependent on representatives of ADHC travelling to her mother’s home to resupply Anita with the medicines that continue to be essential for the management and stabilisation of Anita’s psychological condition.

Initially, and for some weeks, Anita’s psychological state generated hope that the belief of Anita and her family that she would recover from her most threatening behaviours if she was able to return home would be realised.

Unfortunately, that hope has so far been unrealised, and Anita has again started to engage in serious acts of self-harm. It will be sufficient to record part of a discharge summary dated 22 July 2016 in relation to an involuntary admission to the mental health facility at the local hospital, on 13 July 2016:

The evidence shows that there have been consultations between officers of ADHC and the Public Guardian, and with Ms Guthrie herself, with a view to developing a satisfactory plan for Anita’s future, which includes reintroducing Anita to the supported accommodation at Ruse, together with a possible shared care arrangement between Anita’s maternal grandparents and Ruse, whereby the special funding package that has been arranged for Anita could be retained. The support package can only be accessed if Anita is not residing with her biological parents, which is consistent with the arrangements generally applied to young persons leaving care. The details of the arrangements suggested by ADHC are contained in an email from a manager of ADHC to Ms Guthrie dated 15 July 2016.

The latest word from the Public Guardian put before the court is a statement made by Ms Guthrie on 25 July 2016 in the following terms:

As the Minister’s parental responsibility for Anita had ceased, the Minister was removed as a party to the proceedings at the Minister’s request, by order made on 24 May 2016.

The Public Guardian and Anita’s mother were added as defendants to these proceedings on 15 June 2016.

On 26 July 2016, the remaining plaintiff in this matter, the Secretary, applied to the court for an order that the balance of the summons filed on 22 August 2013 be dismissed.

Counsel for the Secretary advised the court that the Secretary had made the application because the Minister’s parental responsibility for Anita had ended; the Secretary had taken all available steps to involve ADHC in the future care and welfare of Anita; a guardianship order had been made appointing the Public Guardian; and the Secretary had exhausted the Secretary’s capacity to ensure a proper transition of responsibility for Anita’s welfare from the Minister to the Public Guardian.

It is clear that the Secretary has not applied for the balance of the summons to be dismissed because the Secretary is satisfied that all proper and necessary steps have been taken to ensure an effective transition of responsibility.

If the court had made the orders sought, then the exercise of its power and responsibility under the parens patriae jurisdiction would have come to an end. The Minister’s role of protecting Anita by exercising parental responsibility over her has expired. The Public Guardian has not yet decided upon any complete or comprehensive plan for the exercise of its guardianship powers in respect of Anita.

Because of the manifest risk that Anita could cause herself serious, and perhaps irreparable, harm in the hiatus of apparent institutional responsibility for her care and well-being, I declined to make the order sought by the Secretary, and reserved consideration of the application.

The question at this stage is:

It is appropriate to make the following initial observations. First, this is a case where the court’s parens patriae jurisdiction has been engaged both by the fact of Anita’s minority, and also the behavioural consequences of her mental disabilities.

Secondly, this is a relatively extreme case where Anita’s safety has required, and continues to require, an exceptionally high level of professional supervision, care, and sometimes even restraint.

Thirdly, I am at this stage only concerned with the need for relatively short-term transitional arrangements to facilitate the effective transition of responsibility for Anita from the Minister to the Public Guardian. The issue is the extent of the court’s power, acting within the existing proceedings, to facilitate, or even require, cooperation between the Secretary and the Public Guardian, and the formulation by the Public Guardian of a plan, by the exercise of the statutory powers vested in the Public Guardian by the order made by NCAT, to achieve a satisfactory level of protection for Anita.

At this point I assume that, if the court retains the jurisdiction to take these steps, an outcome will be achieved in a relatively short amount of time, which will allow the court to decide that the need for the continuation of the exercise of its parens patriae jurisdiction has come to an end, so that it would be proper for the court to dismiss the Secretary’s summons, and leave the future guardianship of Anita in the hands of the Public Guardian. I leave aside for the present the possibility, which remains open, that circumstances may require the court to continue to exercise its parens patriae jurisdiction for a longer period than I presently contemplate.

It is necessary to review relevant authority to determine the nature and extent of the court’s powers in this context.

Recently, in Re Application of Local Health District; Patient Fay [2016] NSWSC 624, Sackar J described the court’s parens patriae jurisdiction in the following terms:

More recently, Lindsay J, drawing on his great learning on the subject, has undertaken a comprehensive examination of the performance of the protective functions of the State in Re AAA; Report on Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805. His Honour described the purpose of his judgment in the following terms:

The case before his Honour differed from the present, in that the young person concerned had suffered personal injuries in a motor vehicle accident that caused her to be incapable of managing her own affairs. She was awarded compensation in the sum of approximately $3 million. Lindsay J had made protected estate management orders on 24 June 2014, when she was 16 years of age, under the NSW Trustee and Guardian Act 2009 (NSW). The young person was incapable of managing her affairs. She was apparently not prone to self-harm or other risky behaviour. The question was whether the court should continue the protected estate management orders after her imminent 18th birthday.

Nonetheless, his Honour’s review of the law, in its practical context, is of great assistance in the present case, and warrants being set out at some length. Given the length of the following extract, and the extent of the deletions that I have made, I should explain that I have omitted the commentary that is more relevant to the making of protected estate management orders, and also aspects of the important historical analysis undertaken by his Honour (may I be forgiven for the latter):

Brereton J has been required to deal with a similar problem to that with which I am now faced in the case involving Lee, in respect of whom comparable orders were made to those that I have made in relation to Anita. In Secretary, Department Family and Community Services; Re “Lee” [2015] NSWSC 1276, in which judgment was given before Lee turned 18 years old, Brereton J said:

Brereton J subsequently made orders in circumstances where his Honour was satisfied that the exercise of the court’s parens patriae jurisdiction was no longer required: see Secretary, Department of Family and Community Services: Re “Lee” [2016] NSWSC 138, where his Honour said:

It is of some significance that Brereton J gave the first of these judgments on 2 September 2015, two days before Lee turned 18 years of age; and his Honour then made his final orders on 16 February 2016, some five months later. During this period, Lee remained the subject of the exercise of the court’s parens patriae jurisdiction. The guardianship order made by NCAT, in favour of the Public Guardian, had been in place for about five months.

From these authorities, the following propositions emerge relevant to the immediate question of what can and should be done for the transition of Anita into a satisfactory, ongoing regime for her care and safety:

For these reasons, I am therefore satisfied that it was appropriate for the court to decline to dismiss the balance of the summons at the request of the Secretary, and that it is proper for the proceedings to remain on foot, at least in the short term, to enable the court to be satisfied that it has properly performed its duty to Anita, because it has been satisfied that the transition in administrative arrangements for Anita’s care and well-being has been properly implemented.

Notwithstanding these observations, I will not make any orders at this time, particularly insofar as they may affect the exercise by the Public Guardian of the powers vested in it by the guardianship order made by NCAT. The Public Guardian has not been given any notice that the court might consider making orders, and has not been given an opportunity to put submissions to the court.

Furthermore, the court should respect the independence of the Public Guardian as far as is possible. As it is to be expected that it will be necessary for NCAT to extend the existing guardianship order, and as that will have the effect that the Public Guardian will have to take long-term responsibility for Anita’s welfare, the court should not unnecessarily intrude upon the decision-making process of the Public Guardian.

However, the court should not cease its supervision over Anita’s welfare until it is positively satisfied that, in a timely way, the transition from the parental responsibility of the Minister to the guardianship of the Public Guardian has been satisfactorily implemented.

I propose to cause my associate to communicate with the legal representatives of the Secretary, the Public Guardian, Anita’s mother and, if she believes that she has a continuing role, Anita’s independent legal representative, to fix a hearing for directions concerning the future exercise by the court of its parens patriae jurisdiction in respect of Anita. It will be necessary in the first instance that the directions hearing occur soon.

At this stage, I will do no more than to respectfully request Ms Guthrie to consider the observations that I have made in this judgment, and the immediate need to make appropriate decisions to deal with Anita’s transition from the secure accommodation that she formerly had, to the most appropriate alternative available for her long-term supported accommodation and care.

It seems obvious that it is necessary to consider and address the real and persistent behavioural problems that have continually put Anita’s health and welfare at risk. The result of sustained expert involvement in the provision for Anita’s future by officers of FACS is that her residence in the supported accommodation at Ruse is in her best interests, at least for the immediate future. While changes to Anita’s residential arrangements may be possible, which are more in keeping with her own wishes, stark realism is required in judging what changes may be feasible, and when they may be safely implemented. It is crucial that the utilisation and maintenance of the special funding arrangements for Anita’s future be considered, and the greatest of care be taken about the possible consequences for Anita’s long-term well-being, if a course is taken whereby that funding is lost.