Re Abdus[2016] QMHC 10

MENTAL HEALTH COURT

1. [1]
   This was a reference to the Mental Health Court in relation to an adult man who faced three charges.  The question of unsoundness of mind could not be determined because there were factual issues which the Court could not resolve: see s 268(1) of the Mental Health Act 2000 (the Act).  However, the evidence justified a finding that Mr Abdus was permanently unfit for trial.  On 14 June 2016 I made that finding and made a Forensic Order (Mental Health Court – Disability).
2. [2]
   The Director of Forensic Disability appeared on this reference and ventilated a point about her right to appear as a party in the Mental Health Court.  That point had been apparent, but undecided in the Mental Health Court for some time.  It came to a head because I raised it in a judgment in MAB.^[1]  MAB involved an adult man with a very low IQ.  The Director of Forensic Disability elected to be a party on the hearing of MAB.  The evidence in MAB disclosed a real concern that MAB’s parents and brother were taking advantage of him financially.  That was not a matter which could be dealt with by the Mental Health Court, as this Court’s powers are limited by statute.  However, on the hearing I raised whether one of the parties might advance MAB’s interests either by seeking the appointment of an independent guardian or seeking an independent investigation by the Public Guardian.  I was told by counsel representing the Director of Forensic Disability that the Director had no power to make such a reference on behalf of MAB because the Director’s power only related to persons who were detained in the forensic disability service.^[2]
3. [3]
   In giving judgment in MAB I concluded that the Director of Forensic Disability was correct in this submission.  That Director has very limited powers.  They relate to persons who are confined in, or liable to be confined in, a 10-bed unit for persons with extreme disabilities who commit offences.  The Forensic Disability Act 2011 (Qld) (FDA) defines these persons as “forensic disability clients”.  The Director of Forensic Disability does not have other powers.  The relevant part of my decision in MAB was:

“[12]  My first thought was that I ought to direct the Director of Forensic Disability to either seek the appointment of an independent guardian or apply to the Public Guardian for an investigation.  In 2011 Parliament enacted the Forensic Disability Act 2011 (FDA).  At the same time consequential amendments were made to the [Mental Health] Act.  One of those amendments was to change the definition of party.  The definition was changed to include the Director of Forensic Disability as a party to a reference heard at the Mental Health Court, ‘if that director elects to become a party to the proceeding’. 

[13]  The Director of Forensic Disability elected to be a party to this reference on 12 November 2014; filed material, and appeared and made submissions on the hearing of the reference.  The Director of Forensic Disability is created by the FDA.  Section 87 of the FDA provides that the Director has a function to ensure the protection of the rights of forensic disability clients – s 87(1)(a).  A forensic disability client is defined at s 10 of the FDA as an adult with an intellectual or cognitive disability for whom a forensic order is in force for the person’s detention in the forensic disability service.  The forensic disability service is defined by s 95 of the FDA as a place declared by regulation.  Regulations define the service as a 10 bed unit near Ipswich.   So, while the word ‘service’ is used in the name of the forensic disability service, in fact it is not a service; it is a place.  Thus, while the FDA runs to some 160 odd sections, together with some schedules, it appears that the ambit of responsibility of the Director of Forensic Disability is very limited.  That Director has no statutory function to protect MAB’s rights.  Indeed, I cannot see that the Director has any function in relation to MAB at all.  I cannot see that the Director could be an appropriate person to pursue Dr Simpson’s concerns.  The situation would be otherwise if MAB were a forensic disability client as defined.  I reserve for another day the question of whether or not the Director of Forensic Disability has any ability to elect to be a party to a matter where, as in this case, there is no sensible prospect that the defendant is ever going to be detained in the forensic disability service, or be liable to be detained in that service.   It is difficult to see what interest the Director could have in the matter before the Court.

[14]  In any event, I cannot see that the Director’s having elected to appear in this matter, and having been allowed to do so, could give him power to act to protect MAB’s interests when that power is not given pursuant to statute.  Thus I am convinced that I should not direct the Director to apply to QCAT or the Public Guardian.” (footnotes omitted and underlining added).

4. [4]
   As I say, the Director of Forensic Disability chose this reference of Abdus to ventilate the point raised in the above extract.  This case is identical with MAB in the sense that Mr Abdus is not, and is not liable to be, confined in the 10-bed unit.  He is not a forensic disability client and there is no evidence that he ever will be.  He is therefore someone over whom the Director of Forensic Disability has no power and in relation to whom she has no function.
5. [5]
   Proceedings in the Mental Health Court are not adversarial, but inquisitorial.  Section 264(2) of the Act provides that upon the reference of a person’s mental condition relating to an offence to the Mental Health Court, the Registrar of the Court must give “written notice of the reference to the other parties to the proceeding for the reference.”  Similarly s 266(1)(a) of the Act provides that the Registrar must give seven days written notice of the hearing to, “the parties to the proceeding”.  The Dictionary Schedule to the Act provides a definition of party.  That definition is as follows.  The subparagraph relevant to this case is (g), but the other subparagraphs in which the Director of Forensic Disability is mentioned are included in this extract:

“party means–

…

5. (e)
    for a proceeding in the Mental Health Court on an appeal against a decision on an application under chapter 5, part 1, division 2A for an order for the transfer of a forensic disability client from the forensic disability service to an authorised mental health service–

1. (i)
    a party to the proceeding in the tribunal for the application; or

2. (ii)
    the director, if the director is the appellant or elects to become a party to the proceeding; or

3. (iii)
    the director (forensic disability), if that director elects to become a party to the proceeding; or

6. (f)
    for a proceeding in the Mental Health Court on a reference not mentioned in paragraph (g)–

1. (i)
    the person the subject of the reference; or

2. (ii)
    the director; or

3. (iii)
    the director of public prosecutions; or

7. (g)
    for a proceeding in the Mental Health Court on a reference about a person who has an intellectual disability–

1. (i)
    the person the subject of the reference; or

2. (ii)
    the director, if the director elects to become a party to the proceeding; or

3. (iii)
    the director (forensic disability), if that director elects to become a party to the proceeding; or

4. (iv)
    the director of public prosecutions; or

…

10. (j)
     for a proceeding in the Mental Health Court on an application to inquire into a forensic disability client’s detention in the forensic disability service–

1. (i)
    the forensic disability client; or

2. (ii)
    the applicant; or

3. (iii)
    the director (forensic disability); or

(k) for a proceeding in the Mental Health Court on an application under section 607 to change a person’s forensic order (Mental Health Court) to a forensic order (Mental Health Court – Disability)–

1. (i)
    the person to whom the existing forensic order relates, or someone else on behalf of the person; or

2. (ii)
    the director; or

3. (iii)
    the director (forensic disability); or

4. (iv)
    the director and the director (forensic disability) acting jointly; or

5. (v)
    the Attorney-General.”

6. [6]
   Counsel for the Director of Forensic Disability relied upon that statutory definition in support of the argument that the Director had a right to elect to be a party to any reference which concerned someone with an intellectual disability.  It was submitted that this was so regardless of the fact that the case did not involve a forensic disability client.  That is, it was argued that the Director of Forensic Disability had a statutory right to elect to be a party to a matter where it had no power or function in relation to the subject of that reference.  It was argued that it was not necessary for the Director of Forensic Disability to demonstrate an interest in the proceeding in the sense recognised in Australian Conservation Foundation Inc v Commonwealth.^[3]  No authority was cited for any of these propositions.  The argument depended upon the definition of party in the Act.
7. [7]
   It is worth recording the practical effect of the above submission.  The 10-bed unit which constitutes the forensic disability service is available under the FDA only to adults – s 10(1) FDA.  A bed in the unit is available only to persons when a certificate of availability is given to the Mental Health Court by the Director of Forensic Disability – s 288AA of the Act.  Unless there is such a certificate, a Forensic Order (Mental Health Court – Disability) must not detain the subject of a reference to the forensic disability service – s 288(9). 
8. [8]
   In almost three years on the Court my experience has been that such a certificate has never been given, even in the rare case where the subject of the reference suffers from such an extreme disability that the Court gives consideration to whether or not they ought be detained in the forensic disability service.  No doubt there is no funding for any further beds. 
9. [9]
   While the Mental Health Court hears many references about persons with intellectual disability, almost all of them concern children or adults who do not have such an extreme disability as would warrant detention in the forensic disability service.  That is, in the vast majority of cases before the Mental Health Court involving someone with an intellectual disability (I would estimate in the region of 98 to 99 per cent), the Director of Forensic Disability has no powers, functions, responsibilities or obligations in relation to the person the subject of the reference.
10. [10]
    Notwithstanding this, until my decision in MAB, the Director of Forensic Disability routinely elected to appear, by counsel, in cases concerning children with intellectual disabilities, and adults with intellectual disabilities which could not conceivably warrant detention in the 10-bed unit.  The Director’s appearance was generally unhelpful to the Court, as might be expected from a person with no interest in the proceeding.  The Director filed material which originated from the Department of Communities.  That department has responsibility for the intellectually disabled living in the community, but is not given a right to appear in the Mental Health Court.  The Director of Forensic Disability could take no responsibility for the content, timeliness or usefulness of the material, for it was not that Director’s material.  The Director of Forensic Disability would not oblige or assist the Court by undertaking to perform any action which would either assist the Court hearing or assist the disabled person – when such issues arose the Director’s position was that he or she had no relevant power.  As the transcript in MAB shows, the Director was unwilling, or unable, even to produce a draft order in cases where it appeared: the provisions of the draft order and its execution were in the realm of the Director of Mental Health, not the Director of Forensic Disability.
11. [11]
    Unfortunately both written^[4] and oral submissions on this application were incorrectly to the effect that the Director of Forensic Disability, or the Administrator under that Act, had some general role in respect to Forensic Orders (Mental Health Court – Disability), and defendants with intellectual disabilities who were the subject of a reference to the Mental Health Court.  Thus submissions as to what type of common law interest the Director had were misplaced.^[5]  In any event, the primary submission of the Director of Forensic Disability was, as stated above, that, irrespective of common law interest, the Director had a statutory standing to appear as a party on a reference, at her election.
12. [12]
    It is no doubt within the competence of the legislature to give a person standing to appear in Court in circumstances where they would not have that standing at common law.  The most well-known example is s 123(1) of the Environmental Planning and Assessment Act 1979 (NSW), which provides, “Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.”  While it is only an example of such an “open standing” provision, there are three very significant points of contrast between that section and the definition of party in the dictionary schedule to the Act:

1. (a)
    First, s 123(1) is unmistakably concerned with the granting of a right to, “any person”.  The definition of party in the Act is not a part of the legislation expressly concerned with granting a right.  It does not say, for example, that the Director of Forensic Disability has a right to appear as a party on the hearing of a reference if it elects to do so.

2. (b)
    The extraordinary nature of the grant at s 123(1) of the Environmental Planning and Assessment Act is recognised by the subsection itself.  It does not simply provide that “any person may bring proceedings in the court”.  It makes the legislative intention abundantly clear by saying, “whether or not any right of that person has been or may be infringed by or as a consequence of that breach.”  That is, the legislation plainly grants to “any person” a right which the recipient would not have otherwise at common law.

3. (c)
    The clear words of s 123(1) notwithstanding, the intention of the Parliament was also made clear in the objects of the Environmental Planning and Assessment Act and in Parliamentary debates on the topic.^[6]  This was in a context where this type of “open standing” in public law matters, and environmental and planning matters, in particular, had been the subject of debate and Law Reform Commission recommendations.  There is no equivalent extra-statutory material in this case.

13. [13]
    I do not read subparagraph (g) of the definition of party in the Act as granting a right to the Director of Forensic Disability which it does not otherwise have at common law.  The various subparagraphs in the definition of party show that the legislature considered whether or not the Act should provide that the Director of Forensic Disability should automatically be made a party to proceedings in the Mental Health Court, or whether it should provide that the Director had an election to become a party.  Thus, in proceedings which directly concern a forensic disability client’s detention in the forensic disability service, the Director of Forensic Disability is a necessary party – see subparagraph (j).  This is what one might expect.  In other paragraphs, such as subparagraphs (e), (g) and (k), where the issues might be predominantly psychiatric in one case, and predominantly concern disability sufficient to warrant detention in the forensic disability service in another, options are given to the Director of Mental Health and the Director of Forensic Disability to elect to be parties according to the facts of any particular case.  That is, it can be seen that the legislature contemplated that it would only be in cases where the Director of Forensic Disability had some real interest in a case before the Mental Health Court that it would be a party to the proceeding. 
14. [14]
    I do not think it is without significance that it is the word “or” which is found between each of the internal subparagraphs in the several definitions of party.  That is, the definitions are concerned to describe all those persons who might potentially be parties, not to define in a mandatory way who must be parties.
15. [15]
    There is nothing in the language of the definition section itself; elsewhere in the Act, or within the FDA that would lead to any logical conclusion that in some indirect way, via a definition section, the Director of Forensic Disability was being granted a quite extraordinary right to appear in matters in which it had no common law interest.  Rather the sections which mention the Director of Forensic Disability electing to become a party should be interpreted as meaning that the Director may elect to become a party if it has an interest in that particular proceeding.  There could be no sensible reason to give a person with extremely limited statutory functions the right to appear in matters in which it had no interest.  Indeed, to give the Director of Forensic Disability a right to appear and thus become involved in making decisions about the welfare of persons in relation to whom it has no statutory function would appear to me to be a most unlikely objective of the legislature, logically, and having regard to the potential liability the Director of Forensic Disability might incur to those persons, or others, as a result of doing so.
16. [16]
    I declare that the Director of Forensic Disability has the right to elect to become a party to a reference in the Mental Health Court only where that Director has an interest in the proceeding at common law.