Attorney-General v FPN[2021] QSC 110

SUPREME COURT OF QUEENSLAND

1. [1]
   By an originating application dated 29 July 2020, the applicant applies for an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) in respect of the respondent.
2. [2]
   Pursuant to section 9A(2) of the DPSO Act the respondent has been detained in custody.  The interim detention order has been extended until 4pm on 25 June 2021.
3. [3]
   An issue has arisen as to whether the respondent is a person with “impaired capacity”.
4. [4]
   On 30 April 2021, Davis J ordered that the question of the respondent’s representation in these proceedings and the management of his affairs be listed for hearing on 13 May 2021 before me.
5. [5]
   There is no application before the Court in respect of the issue of capacity, but rather it is an issue that has arisen on the preliminary evidence currently before the Court.^[1]  The legal representatives of the respondent also raised concerns about their ability to take instructions.^[2]
6. [6]
   Ms Reece of Counsel and Legal Aid Queensland have been unable to obtain proper instructions from the respondent.  Counsel and Legal Aid Queensland appeared as amicus curiae.
7. [7]
   The respondent participated in the hearing on 13 May 2021 via videolink.
8. [8]
   The question to be considered is whether the respondent has capacity to make the decisions required to conduct the review of his continuing detention under the DPSO Act and, if not, what is the appropriate course.
9. [9]
   This matter was listed to be heard on the same day as, and following, the hearing in the matter of Attorney-General for the State of Queensland v SLS.  Many of the same issues arise for consideration in both matters.
10. [10]
    I have undertaken a detailed consideration of the relevant legislation and issues which arise, and published detailed reasons in Attorney-General for the State of Queensland v SLS [2021] QSC 111.  Rather than repeat the discussion of the general principles here, I adopt the principles as set out in my reasons in Attorney-General for the State of Queensland v SLS [2021] QSC 111.
11. [11]
    I will apply the identified principles to the facts relevant to the respondent in this matter.

Is the respondent a person with impaired capacity?

12. [12]
    It is necessary for this Court to reach  a view on the available evidence as to whether the respondent is a person with impaired capacity within rule 72 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
13. [13]
    The principles are discussed together with the relevant authorities in Attorney-General for the State of Queensland v SLS [2021] QSC 111.  As highlighted by the analysis undertaken, it is impossible to prescribe an assessment criterion that is to be applied in respect of a person faced with proceedings under the DPSO Act.  Ultimately the assessment as to whether a specific individual is a person with impaired capacity will depend on the specific facts of a particular case, informed by the relevant enquiries identified.  This is also to be done keeping in mind the gravity of a proceeding under the DPSO Act and the significant potential impacts on the liberty of the individual concerned. 
14. [14]
    The general principles that can be identified require a consideration of whether the respondent is not capable of making the decisions required of a person responding to a DPSO Act proceeding.  At the outset this requires an understanding of the nature of the DPSO Act proceeding and a consideration of issues such as whether the respondent:

    1. (a)
       understands the nature of the application under the DPSO Act and that if the respondent is found to be a serious danger to the community the respondent may be subject to an order for continuing detention or release subject to a supervision order.
    2. (b)
       understands the nature of the decisions the respondent has to make.
    3. (c)
       understands the effect of the decisions the respondent has to make.
    4. (d)
       is capable of  freely and voluntarily, and rationally, making decisions about the matter.
    5. (e)
       is capable of communicating decisions about the matter.
15. [15]
    The decisions required of a person responding to a DPSO Act proceeding are different than those of “ordinary” civil proceedings, particularly given that the liberty of the respondent is at stake.  The decisions required include, but are not limited to informed decisions freely, voluntarily, and rationally made concerning:

    1. (a)
       whether to engage a lawyer;
    2. (b)
       whether to present evidence;
    3. (c)
       the type of evidence to be presented;
    4. (d)
       whether to cross-examine witnesses;
    5. (e)
       what questions to ask in cross-examination;
    6. (f)
       engagement with the real questions, including whether the person poses a serious danger to the community, and if so, how that risk should be met;
    7. (g)
       risk mitigation strategies, including:

       1. identification of, and procurement if needed, of accommodation and rehabilitation and treatment programs;
       2. identification of, and procurement if needed, of support services (eg through NDIS);
    8. (h)
       compliance with any requirement of a supervision order;
    9. (i)
       what submissions to make;
    10. (j)
        prospects for a potential appeal, and whether to initiate or defend an appeal; and
    11. (k)
        if subject to a continuing detention order, whether an application to the Supreme Court for leave to initiate a review should be made.
16. [16]
    The evidence before the Court relevant to the respondent includes the following:

    1. (a)
       Dr Arthur identifies that the respondent’s psychiatric diagnoses likely include Paedophilia (predominantly female, non-exclusive), Exhibitionism (displaying consistent elements), Antisocial Personality Disorder, features of Borderline Personality Disorder, an historical diagnosis of Schizophrenia or Drug Induced Psychosis and unexplored Cognitive Impairment.^[3]
    2. (b)
       Dr Brown is of the view that the respondent suffers from Mixed Antisocial and Emotionally Unstable Personality Disorder, Substance Use Disorder (alcohol, cannabis, and other substances), probable Psychotic Disorder (most likely Schizophrenia or Organic Psychotic Disorder secondary to substance use) and possible Cognitive Impairment. Dr Brown also indicates in her first report:

“It is unclear if he has a diagnosis of exhibitionism disorder, paedophilic disorder or any other paraphilic disorder, although his offending profile would support these diagnoses.”^[4]

3. (c)
   Dr Arthur commented in his report dated 6 February 2020:

“[185]  Given prisoner [FPN]’s age, sexual preoccupation, the likely presence of a paraphilic disorder, personality/cognitive vulnerabilities, lack of support and high level of denial, a longer duration of supervision would be indicated …”

4. (d)
   Dr Arthur provided a further response on 19 March 2021 in respect of the respondent’s capacity and commented as follows:

“An IQ of 75 in isolation doesn’t automatically preclude a person from being fit for court, indeed many of the people I assess for Mental Health Court have measured IQs in the 60’s and have still been found fit.  Of course there are other issues here, such as the possibility of a psychotic illness, low level of education (although I found his reading skills better than expected) and a significant degree of dependency/institutionalisation.  I note that while there were some concerns about his comprehension skills during the GSPP, he was considered capable of completing the MISOP.

Without reviewing the neuropsychological assessment, it is difficult to comment on the specifics of fitness for trial/fitness to instruct counsel.  Whilst I could re-interview [the respondent], I am not sure how useful that would be.  He doesn’t appear to be floridly psychotic and was able to give a reasonable version of events to me in relation to the offences.  Based on my previous assessment, I would think that he was fit for court and I suspect nothing has changed in that regard.

It may help to gain some clarity around any specific concerns his legal team have.  I am happy to review the Neuropsychological assessment and decide after that whether there is benefit in a re-assessment.”^[5]

5. (e)
   Dr Arthur was subsequently provided with the reports of Dr Anderson (neuropsychologist) and Dr Broome (occupational therapist) but no further updated report or response was provided by the time of the hearing.^[6]
6. (f)
   In undertaking the risk assessment report for the purposes of the DPSO Act application, Dr Brown commented in her report dated 2 November 2020:

“[The respondent] very likely has a diagnosis of schizophrenia and it is not clear if he is still under a treatment authority or if he is an open consumer of the prison mental health service. At the time of interview he presented with grandiose delusional beliefs and a level of disorganisation which, if left untreated, would limit his abilities to engage with supervision and treatment. Management of his mental illness should be an integral part of risk reduction.

[The respondent] almost certainly minimised his past substance use in the community and he is very likely to use substances again if not assertively managed in this regard, which in turn will increase his risk of sexual offending. He is also vulnerable to the influence of other persons using substances and may engage in associated criminal behaviours required to sustain use. He may also have a gambling habit which will further reduce his funds and increase his risk of homelessness and acquisitive crime.

[…]

Ultimately, his mental illness is appropriately managed, a return to the community with restrictions, appropriate monitoring and offender treatment would reduce [the Respondent’s] risk to a low-moderate and manageable level. He may be able to manage somewhere like the Wacol Precinct with appropriate supports in place. Alternatively he would benefit from placement in a supported independent living arrangement. To achieve the necessary supports, an application to the National Disability Insurance Scheme (NDIS) would need to be made. [The respondent] may also benefit from the appointment of the Public Guardian to manage his finances and assist with more complex decision making.

[…]

[The respondent] does not have any reliable internalised relapse prevention strategies and, given his presentation, progress in treatment is likely to be slow. As such he will need long term external risk reduction supervision and supports. I therefore recommend that if a supervision order is made, it is for a period of 10 years.”^[7]

7. (g)
   Dr Brown was asked to prepare a further report advising on “fitness for trial” and interviewed the respondent again on 15 April 2021.   Dr Brown’s further report dated 9 May 2021 concludes in respect of “fitness for trial” as follows:

“[The respondent] continues to present an overall poor understanding of his offending pathway and the associated risk factors. He has very limited insight into why he committed the various past offences and into his mental health treatment and risk management needs. He remains essentially untreated in both these domains.

At interview on the 15th April 2021, [the respondent] displayed marked thought disorder. He was unable to stay on topic properly and at times he his thoughts were derailed. He was able to give a very basic account of his situation and the current DPSOA application as well as a basic description of a court room and court proceedings. However his level of disorganisation and his (at least mild) cognitive impairment will compromise his ability to follow the course of proceedings in Court. His ability to give instructions to his solicitors will be limited, because he will be unable to properly understand, process and appropriately respond to more complex material and/or evidence given against him. As such it is my view that he does not meet the criteria for fitness for trial as detailed in R vs Presser.

It is likely that in the very rigid and predictable structure of the prison, [the respondent] is able to manage sufficiently to attend to his basic ADLs and to work in a basic role. However, it is my view that outside of this structure his mental health symptoms will become more obvious and disabling. In my opinion, [the respondent] is currently too disorganised to follow the many conditions that will be associated with a supervision order. He will likely breach the order inadvertently either due to disorganisation or failure to properly understand (and retain) the conditions. I also note that his sexual offending behaviours, particularly the more recent incidents were disorganised and without appropriate treatment, as per my original opinion, his risk of similar disorganised offending remains significant.

[The respondent] has expressed a wish to take medication and, given his ongoing psychotic symptoms I recommend that he is commenced on antipsychotic medication. It may be that he responds reasonably well to this and that he is sufficiently improved so as to be able to instruct his solicitors and to adhere to conditions (if a supervision order is made). Alternatively it may be appropriate to consider placement in a mental health facility in order to more comprehensively address [the respondent’s] various mental health needs and to link him into the various community supports that will be available to him (ie the National Insurance Disability Scheme and community mental health support).”^[8]

8. (h)
   Dr Simpson provided a risk assessment report dated 2 November 2021 and provided a further letter dated 15 April 2021 in respect of the respondent’s capacity to respond to the DPSO Act proceedings.  Dr Simpson states:

“it is hard to say for certain whether [FPN] currently has capacity for instructing his legal representatives in order for the court hearing to proceed, but would suggest that if he is not currently fit for trial this is a temporary situation and secondary to an untreated mental illness, in which case I would recommend that an admission to hospital as a classified patient be considered for treatment to be commenced and then for him to be re-assessed regarding fitness for trial.”^[9]

17. [17]
    Dr Brown was able to be available for the hearing and gave further oral evidence by telephone in respect of her assessment of the respondent’s mental health diagnosis and also issues relevant to his capacity to be involved in the DPSO Act proceedings.  This assisted the Court and I am grateful for Dr Brown’s willingness to attend by telephone and give further evidence in this regard.
18. [18]
    Relevantly for the current consideration of the respondent’s capacity, Dr Brown gave the following evidence:

    1. (a)
       The respondent suffers from a degree of cognitive impairment and it is not clear where that ends and where the mental illness starts.  The two compound each other.^[10]
    2. (b)
       The respondent also suffers from a psychotic illness, which developed around the late 1990s.  The respondent has been referred to the Prison Mental Health Service on numerous occasions since then.^[11] 
    3. (c)
       The respondent has become more and more disorganised, probably as the schizophrenia has progressed and compounded by use of methylamphetamine and other drugs.  He also has a degree of negative syndrome, which manifests as a lack of motivation, apathy, and some associated cognitive decline.^[12]
    4. (d)
       In respect of the negative syndrome, the respondent has deteriorated in his level of social and occupational functioning, becoming homeless over a period of time, heavily reliant on agencies to support him and he has been incarcerated a number of times.  Negative syndrome can be treated but it is more difficult when there are cognitive symptoms also present.  It is difficult to know whether symptoms would remain after treatment.^[13]
    5. (e)
       The respondent has a thought disorder and he is delusional and those are the features of his illness which are impacting on his risk to others and the risk to himself.^[14]
    6. (f)
       The respondent has a current need for antipsychotic treatment.  The respondent has indicated that he is not opposed to treatment.  Alternatively, he would need to be assessed against the treatment requirements in respect of any involuntary treatment.^[15]
    7. (g)
       The respondent’s concern about housing on release (including identification and rent etc) are a manifestation of being incarcerated for a long period and also his mental illness.  He is institutionalised and also disorganised.  He was not logically thinking through how to do fairly basic things.  The respondent is also delusional and as a result he is not thinking through things.  He is disabled because of his mental illness, in particular, his delusional thought processes and his disorganised thought processes.^[16]
    8. (h)
       The respondent has grandiose delusion beliefs.  He has a delusional belief that he can access a large amount of money (eg $60 million).  He also has a delusional belief in his ability to address the coronavirus, including the pharmaceutical industry.^[17]
    9. (i)
       The respondent has a number of delusional beliefs which would have a bearing in his ability to navigate proceedings.^[18]
    10. (j)
        The respondent indicates derailment, a type of thought disorder.  It is moving to completely unrelated topics.  It is a complete breakdown of logical links between thoughts.^[19]
    11. (k)
        Capacity includes being able to provide instructions, make decisions and understand the nature of the proceedings.  The respondent was assessed as “not fit for trial”.  The respondent does not meet the Presser test (criminal test), he would also not meet the civil criteria of being able to make the decisions required for the conduct of the DPSO Act proceedings. ^[20]
    12. (l)
        The respondent would really struggle to give instructions given his mental state and he would become more and more disorganised.^[21]
19. [19]
    The respondent addressed the Court on several occasions during the hearing.    He spoke about the work he was doing in prison and also his intention to get a job outside of prison.^[22]  He also spoke about doing “the right thing” and “serv[ing] the country”.  He also referred to the “crisis outside” and “it’s really important to really stand together and think about things too because it’s more about thinking than feeling.”^[23]  While the respondent was able to address the Court, the comments made by him were not logically relevant to the issues that were being discussed during the course of the hearing.  It appeared from the respondent’s comments that he was not really understanding the issues that were before the Court.
20. [20]
    Some of the opinions from the various treating doctors are inconclusive.  However,  I accept the opinions in the psychiatric reports and the oral evidence of Dr Brown.  In these circumstances, I am satisfied on the evidence before the Court that the respondent has impaired capacity to a sufficient level to trigger rule 72 UCPR.
21. [21]
    Consideration then needs to be given to the appropriate way to proceed with the DPSO Act application in light of this conclusion.

Is the appointment of a litigation guardian under the UCPR appropriate?

22. [22]
    In Attorney-General for the State of Queensland v SLS [2021] QSC 111, I concluded that this Court has the power to appoint a litigation guardian if a person has impaired capacity.  However, it is also necessary to consider whether that is the appropriate course in the particular circumstances.
23. [23]
    There are a number of matters to consider in respect of a litigation guardian, some of which are practical:

    1. (a)
       no individual has been identified who would be prepared or appropriate to act as a litigation guardian.
    2. (b)
       Legal Aid has indicated to the Court:

       1. it would oppose one of its officers being appointed to act as a litigation guardian.^[24]
       2. Legal Aid funding does not extend to the appointment of a litigation guardian and no guideline exists for such funding.^[25]
       3. The Office of the Public Guardian is the statutory office established and funded to protect the rights, interest, and wellbeing of adults with impaired decision-making capacity.^[26]
       4. The Queensland Law Society has no referral list in relation to litigation guardians.^[27]
    3. (c)
       The Public Guardian indicated its position to Counsel for the applicant which was passed on to the Court in submissions:^[28]

       1. The Public Guardian would not want to be appointed as a litigation guardian by order of the Court under the UCPR.
       2. The Public Guardian could be appointed as a guardian for legal matters and personal matters, if necessary, through a referral to QCAT process.
24. [24]
    The respondent suffers from a degree of cognitive impairment as well as a mental illness.  The respondent’s condition appears to manifest itself as if he had an intellectual disability as well as a mental illness.^[29]  As discussed in Attorney-General for the State of Queensland v SLS [2021] QSC 111 where an incapacity is as a result of an intellectual disability or a combination of both mental illness and intellectual disability, a litigation guardian may not be appropriate to be able to deal with all the “personal matters”^[30] that may arise in respect of DPSO Act proceedings.
25. [25]
    As is evident from the recent report of Dr Brown and her oral evidence, the respondent’s capacity to make decisions beyond the legal proceedings, such as in respect of accommodation and support services, is impaired.  Decisions of this nature are relevant to DPSO Act proceedings and therefore it is essential that consideration is given to decision-making in respect of both the legal aspects of proceedings themselves but also wider issues that may be relevant to risk mitigation.
26. [26]
    In respect of the respondent, taking into account the evidence as to his incapacity and the need to consider both “legal matters” and wider “personal matters” that go beyond just the legal proceedings,^[31] it is not appropriate to appoint a litigation guardian by order of the Court pursuant to the UCPR provisions.^[32]

Referral of issue of capacity to QCAT

27. [27]
    Given the evidence in respect of the impaired capacity of the respondent, the fact that there is a current application under the DPSO Act and the respondent is currently detained under an interim detention order, consideration by QCAT of the appropriateness of a declaration as to capacity and an appointment of a guardian is an available option consistent with the objects and purpose of the Guardianship and Administration Act 2000 (Qld) (GAA Act) and the powers and functions of QCAT under the GAA Act.
28. [28]
    This Court has power under the parens patriae jurisdiction^[33] to refer the question of the respondent’s capacity to respond to the DPSO Act proceeding to QCAT.^[34]  A referral to QCAT to consider and determine capacity in accordance with its functions and powers would be both proportionate and in the respondent’s best interests given the identification on a preliminary basis of impaired capacity.
29. [29]
    In these circumstances, I am satisfied that it is appropriate that this Court exercise its  power to refer the question of the respondent’s capacity to respond to the DPSO Act proceedings to QCAT to be determined in accordance with the GAA Act. 

Referral order

30. [30]
    I propose to order that the question of the respondent’s capacity to respond to the DPSO Act proceedings pending in the Supreme Court in BS 8178 of 2020 be referred to QCAT for determination.
31. [31]
    Further, I consider it appropriate that I also direct that the Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material:

    1. (a)
       A copy of these reasons and the reasons in Attorney-General for the State of Queensland v SLS [2021] QSC 111;
    2. (b)
       A copy of the transcript from the hearing on 13 May 2021;
    3. (c)
       A copy of the following documents from Supreme Court file BS 8178 of 2020:

       1. Affidavit of K Arthur filed 29 July 2020 (CFI 3);
       2. Report of Dr Brown filed 2 November 2020 (CFI 25);
       3. Report of Dr Simpson dated 2 November 2020 (Exhibit 1);
       4. Affidavit of A McLean sworn 19 March 2021 (CFI 36);
       5. Affidavit of A McLean sworn 16 April 2021 (CFI 39); and
       6. Affidavit of A McLean sworn 12 May 2021.
32. [32]
    Whilst I am not able to direct that QCAT complete the consideration and make a final decision by a specific date, through these reasons I urge that the referral be dealt with as expeditiously as possible.  The respondent is subject to an interim detention order and the liberty of the respondent is at stake under the application pending in the Supreme Court. Until the issue of capacity can be determined and a guardian appointed, if appropriate, the hearing under the DPSO Act cannot properly proceed taking into account the interests of the respondent.

Progress of Supreme Court proceedings

34. [33]
    On 13 May 2021 the following orders were made:

“(1)  The application for an order pursuant to division 3 of the [DPSO Act] be listed for review at 9.15am on 25 June 2021.

2. (2)
   The interim detention order made pursuant to s 9A(2) on 30 April 2021 that the respondent be detained in custody be extended until 4pm on 25 June 2021.

3. (3)
   The parties be granted liberty to apply generally.

4. (4)
   A copy of the affidavit of K Arthur filed 18 June 2019, report of Dr Brown filed 2 November 2020, the report of Dr Simpson dated 2 November 2020, the affidavit of A McLean sworn 12 May 2021 and the transcript from [the 13 May] hearing be provided to Corrective Services and further direct Corrective Services to provide a copy of the documents to the Prison Mental Health Service.”

34. [34]
    As this matter is already listed for review on 25 June 2021, I direct the Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the referral by 4pm on Wednesday 23 June 2021.^[35]
35. [35]
    If at the review it appears likely that the referral will not be dealt with in a reasonable time, consideration will need to be given at that stage as to how the Division 3 application is to proceed.^[36] 
36. [36]
    The timing of the hearing in respect of the application is not mandated in the DPSO Act, however given the respondent is subject to an interim detention order it would have to be conducted within a reasonable time. Subject to putting in place safeguards for the interests of the respondent (as far as is possible in the circumstances), the hearing may need to proceed even if the referral has not been finally determined.
37. [37]
    While this would not be ideal, the need to avoid a person’s continuous detention on an interim basis without a hearing of the application for an order under Division 3 being completed^[37] is also to be balanced against protecting the respondent as a result of his impaired capacity. 
38. [38]
    Further consideration should be given, if the need arises, as to what directions could be made pursuant to rule 72(1)(b) UCPR and section 46 of the DPSO Act for the conduct of the hearing.  As there would be no contradictor to the position of the applicant, one possible safeguard of the interests of the respondent is a direction that the applicant engage and pay for independent counsel to appear as amicus curiae on behalf of the respondent in respect of the hearing so that all issues are properly ventilated as far as possible with the respondent’s interest in mind.^[38]  This may be an appropriate approach given that the respondent’s liberty is at stake.
39. [39]
    I also note that it may be necessary for updated psychiatric reports to be prepared given the respondent may receive further medical treatment.  Consideration may also need to be given at the review to a timetable to enable that material to be prepared and provided to counsel acting as amicus curiae, if that option is directed.

Orders

40. [40]
    Accordingly:

The order of the Court is that:

1. The question of the respondent’s capacity to respond to the DPSO Act proceedings pending in the Supreme Court in BS 8178 of 2020 be referred to QCAT for determination.

Further, the Court directs that:

2. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material:
   1. A copy of these reasons and the reasons in Attorney-General for the State of Queensland v SLS [2021] QSC 111;
   2. A copy of the transcript from the hearing on 13 May 2021;
   3. A copy of the following documents from Supreme Court file BS 8178 of 2020:
      1. (i)
         Affidavit of K Arthur filed 18 June 2019 (CFI 3);
      2. (ii)
         Report of Dr Brown filed 2 November 2020 (CFI 25);
      3. (iii)
         Report of Dr Simpson dated 2 November 2020 (Exhibit 1);
      4. (iv)
         Affidavit of A McLean sworn 19 March 2021 (CFI 36);
      5. (v)
         Affidavit of A McLean sworn 16 April 2021 (CFI 39); and
      6. (vi)
         Affidavit of A McLean sworn 12 May 2021.
3. The Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the referral by 4pm on Wednesday 23 June 2021.