AZ v Sydney Local Health District

The background to the commencement of these proceedings can be summarised as follows.

On 29 May 2022, proceedings were commenced in this Court on the oral application by CZ's parents, AZ and BZ, on behalf of CZ in the parens patriae jurisdiction, and the Court made an order that:

CZ’s parents subsequently filed a summons seeking an order that, until further order, the Court authorise the confinement of CZ to or, if she leaves the relevant premises, her return to an appropriate facility or such other order as the Court thinks fit.

A principal reason for the making of the interlocutory order on 29 May 2022 was that CZ was unable to return to the family home due to the existence of the AVO referred to at paragraph 1(e) above. The interlocutory order made on 29 May 2022 has continued to operate after a number of extensions until today, to enable time for legal representation to be obtained for both the plaintiffs and CZ, for a formal summons to be filed, evidence (including expert evidence) to be filed, and for the final hearing of the plaintiffs’ summons. On 10 June 2022 in a directions hearing, counsel for CZ indicated that at that time CZ consented to remaining in the Hospital. The Court was informed on the first day of the hearing on 21 June 2022 that CZ’s position had changed and she wished to be released from the Hospital.

I also note paras 12 to 14 of the statement of agreed facts which indicate what needs to occur, which all parties agree, including CZ, before she can be discharged from the Hospital. CZ's instructions to her counsel yesterday were that, first, she does not consent to remaining under any order of the Court at the Hospital; second, she is prepared to remain as a voluntary patient at the Hospital if a bed were not to become available for her at a refuge; and third, she has every intention of attending the appointment at 11am next Monday at the DRP. I note that the first and third matters (i.e. that she does not consent to remaining at the Hospital under compulsion, and that she has every intention of attending the appointment at the DRP next Monday) are in accordance with the written statement that she made to the Court on 21 June 2022, which is exhibit 3 (see paragraphs 4 and 6). I also note what she says at paragraph 8 of exhibit 3 that it is really important to her that she is not in the Hospital on her 17th birthday in July 2022.

As stated above, in March 2022, the DRP advised CZ that it was prepared to admit her to its rehabilitation facility, and this decision was made immediately after her interview on or around 25 March. It is likely that during the appointment next Monday, should it occur as it is currently anticipated it will, she will know immediately if she is accepted again.

The expert medical evidence (which is uncontested) before the Court in this proceeding is to the following effect:

This expert evidence indicates that the next step for CZ's treatment and care should be directed at addressing her substance addiction issues, and that the preferable course would be for her to attend the DRP or another suitable program of the same kind. As noted above, the DRP did accept CZ for admission in March but she declined to attend in early May. However, following her recent treatment at the Hospital and the stabilisation of her mental state, she has now indicated a willingness to attend the DRP if she is accepted on Monday.

As I indicated, the Court is exercising parens patriae jurisdiction and I gratefully adopt the summary of the relevant principles for invoking that jurisdiction set out in a paper written extrajudicially by Justice Lindsay, “Children: the parens patriae, and supervisory, jurisdiction of the Supreme Court” (Address to the Legal Aid NSW Child Representation Conference, 18 November 2017) at [94]. I emphasise in particular the following paragraphs of that summary:

The principle stated in paragraph 18 guided the making of the order on 29 May 2022, which led to CZ being detained at the Hospital. The issue before the Court now is what is necessary for the benefit and in the interests of CZ in light of what has happened to her previously, what led to her being admitted to the Hospital and what has happened since she has been there.

The plaintiffs (CZ’s parents) now seek orders authorising the continued confinement of CZ at the Hospital until she attends the DRP for admission and that she be ordered to attend the DRP for admission.

Professor X who is a specialist in the area of child and adolescent mental health services gave evidence addressing those proposed orders. This was to the effect that (a) in her opinion any order for continued confinement of CZ at the MHF would cause difficulties between her and the other patients and staff, putting them at risk, and in addition the interventions that are necessary to deal with CZ’s escalating behaviour become increasingly coercive which has a negative outcome on CZ’s development; (b) coercive orders of the kind proposed would have a negative impact on the prospects of CZ’s engagement with substance abuse treatments because the success of participation in substance abuse rehabilitation is highly based on the individual’s sense that this is something they want for their lives; and (c) CZ is much more likely to comply with the DRP if she were to attend voluntarily the interview with the DRP and to go through the assessment process on a voluntary basis, rather than being coerced into doing so by an order of the Court.

Further, Professor X said that in her opinion, CZ has a plan for her own life which includes a vocational interest and a wish to live independently but also the hope that she will be able to re-engage properly with her family and continue to have a relationship with them which may or may not involve physically living with them. Professor X was of the view that CZ’s agreement to voluntary admission to a program such as the DRP is part of that plan. Professor X also said that CZ is likely to regard the orders proposed as unfair, which is likely to induce regressive behaviour and make it less likely that she will comply with the DRP.

Another matter I have taken into account is that CZ cannot be discharged to her home due to the AVO that is currently in place and that while steps are being taken to identify a suitable alternative place for her to reside, the interim position is that if she were discharged from the Hospital, there is currently no place for her to go until a refuge is identified.

The matter came before the Court on 29 May 2022 because it was proposed that CZ would be discharged from the Hospital without a clear plan as to where she would go. The position has changed since that time in one significant respect, which is that CZ has indicated her preparedness to be reassessed for admission to the DRP next Monday and, if accepted, to attend. That program is the most constructive step that has been identified to assist CZ to deal with the pressing issue of her substance abuse.

I understand the sense of despair felt by CZ’s parents and it is clear that in seeking the orders referred to above they are only doing what they see as being for the best interests of their daughter. However, the Court has to take account of the expert medical evidence indicating that her continued confinement at the Hospital will have negative impacts on her rehabilitation and that CZ is more likely to engage with the rehabilitation that is needed if she considers that it is her decision.

In my opinion, for these reasons, the appropriate course is to lift the order requiring her detention at the Hospital on the basis that she is prepared to stay as a voluntary patient until accommodation at a refuge becomes available and furthermore that steps to identify alternative accommodation at a refuge will likely only be able to be undertaken after the appointment on Monday with the DRP has taken place at which time her immediate accommodation needs will become clearer. In particular, if she is accepted again at the DRP and continues with her current indication which she has made to the Court that she is prepared and willing to attend the DRP, then the critical matter which engaged the Court’s concern on 29 May will have dissipated.

Accordingly, I make the following orders. The Court makes Order 6 on the grounds specified in s 8(1)(c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) but the Parties have leave to make submissions about the scope of the order.