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SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v SLS  QSC 111
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
BS No 5194 of 2019
Supreme Court of Queensland at Brisbane
24 May 2021
13 May 2021
The order of the Court is that:
Further, the Court directs that:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where a continuing detention order was made in 2019 in respect of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) – where there is before the Court an application pursuant to section 27(2) of the DPSO Act for the first annual review of the continuing detention order – where an issue has arisen as to whether the respondent is a person with impaired capacity – whether the respondent has capacity to make the decisions required to conduct the review of his continuing detention order under the DPSO Act – whether the question of the respondent’s capacity to respond to the DPSO Act proceedings should be referred to the Queensland Civil and Administrative Tribunal for determination
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 11, s 13, s 27(1A)
Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 7, s 9, s 12, s 82, s 146, s 240
Public Guardian Act 2014 (Qld), s 8, s 9, s 10, s 11
Public Trustee Act 1978 (Qld), s 90, s 91
Uniform Civil Procedure Rules 1999 (Qld), r 72, r 93, r 94, r 95
Attorney-General for the State of Queensland v Fardon  QCA 155, cited
Attorney-General for the State of Queensland v S  QSC 157, cited
Aziz v Prestige Property Services Pty Ltd  QSC 265, cited
Christensen v Christensen  QCA 241, cited
Dickson v Australian Associated Motor Insurers Limited  1 Qd R 214;  QSC 69, cited
H v Nominal Defendant (Queensland) (1997) QSC 233, cited
Owners of Strata Plan No 23007 v Cross (by her tutor
Protective Commissioner (NSW) (2006) 233 ALR 296;  FCA 900, cited
Plumley v Moroney & Ors  QSC 3, cited
R v Presser  VR 45 at 48;  ALR 248, cited
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; (1992) 106 ALR 385;  HCA 15, cited
State of Queensland v Nolan (2002) 1 Qd R 454;  QSC 174, cited
Till v Nominal Defendant  QSC 121, cited
Vishniakov v Lay (2019) 58 VR 375;  VSC 403, cited
VJC v NSC  QSC 068, cited
J Tate for the applicant
S Robb for the respondent as amicus curiae
Crown Law for the applicant
Legal Aid Queensland for the respondent as amicus curiae
- On 18 September 2019 a continuing detention order was made in respect of the respondent, under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act). Currently before the Court is an application by the applicant pursuant to s 27(2) of the DPSO Act for the first annual review of the continuing detention order.
- An issue has arisen as to whether the respondent is a person with “impaired capacity”.
- On 30 April 2021, Justice Davis ordered that the question of the respondent’s representation in these proceedings and the management of his affairs be listed for hearing before me.
- On 6 May 2021 the respondent was admitted to The Park High Security Inpatient Service as an inpatient where he is subject to involuntary treatment.
- While they had been able to speak with the respondent on the day prior to the hearing, Ms Robb of Counsel and Legal Aid Queensland have been unable to properly obtain instructions from the respondent.
- Following further evidence at the hearing by Dr van de Belt as to the respondent’s current mental health assessment, Counsel and Legal Aid Queensland confirmed they were appearing as amicus curiae.
- The question to be considered is whether the respondent has capacity to make the decisions required to conduct the review of his continuing detention order under the DPSO Act and, if not, what is the appropriate course.
Uniform Civil Procedure Rules 1999 (Qld)
- Proceedings under the DPSO Act are characterised as civil proceedings. The provisions in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) are therefore the starting point.
- Rule 72 UCPR provides as follows:
“72 Party becomes bankrupt, person with impaired capacity or dies during proceeding
- (1)If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if—
- (a)the court gives the person leave to proceed; and
- (b)the person follows the court’s directions on how to proceed.
…” (emphasis added)
- Schedule 5 to the Supreme Court of Queensland Act 1991 contains the following relevant definitions:
- (a)“person under a legal incapacity means—
- (a)a person with impaired capacity; or
- (b)a young person.”
- (b)“person with impaired capacity means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.” (emphasis added)
- By virtue of the definition of “person with impaired capacity”, rule 72 UCPR is directed to the decisions required of a litigant in respect of the specific attributes, and expected complications that may arise, in the conduct of civil proceedings.
- Whilst proceedings under the DPSO Act are characterized as civil, the legislative scheme puts the liberty of a citizen at issue and provides that in certain circumstances a person is to be subject to continuing detention.
- Further, the proceedings usually raise significantly different considerations to what may be involved in “ordinary” civil proceedings. What is required of a respondent to an application under the DPSO Act is a lot more complex, and the ramifications are far more serious and onerous, than in “ordinary” civil proceedings.
- Accordingly, consideration of whether the respondent is a person with impaired capacity needs to be considered in light of the specific aspects that are relevant to and may arise in proceedings under the DPSO Act.
- The operation of rule 72 UCPR was described by Margaret Wilson J in Plumley v Moroney & Ors as follows:
“ ‘The UCPR are a statutory instrument made under the Supreme Court of Queensland Act 1991 (Qld). Section 37 of the Statutory Instruments Act 1992 (Qld) provides (relevantly) that words or expressions used in a statutory instrument have the same meanings as they have under the act under which the statutory instrument was made.
 ‘Person with impaired capacity’ is defined in the dictionary in schedule 5 to the Supreme Court of Queensland Act 1991 as follows –
‘person with impaired capacity means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.’
 In Thomson v Smith Muir J (with whom McPherson JA agreed) considered this definition of ‘person with impaired capacity’, and said –
‘ The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which must be made in the course of litigation. The existence of a condition or character trait which affects the quality or timeliness of such decisions would not establish ‘impaired capacity’ unless its extent was so gross as to compel the conclusion that the person was relevantly incapacitated. Imprudence or defective judgment, even if resulting from an obsession about the litigation or some aspect of it, normally would not constitute ‘impaired capacity’. The primary judge was entitled, on the evidence before him, not to find ‘impaired capacity’ on the part of the appellant.’
 Thus, the plaintiff needs leave to proceed if she has become incapable of making the decisions required of a litigant for conducting the proceeding.
 Whatever the correct diagnosis of the plaintiff’s condition, I am satisfied that her mental state is such that she is now incapable of making such decisions …”
- These comments provide some general guidance as to the approach in considering whether a particular person is a person with impaired capacity in respect of civil proceedings.
What are the decisions required of a person faced with DPSO Act proceedings?
- Member Kanowski recently had to consider the key decisions pertinent to a proceeding under the DPSO Act in In applications about matters concerning ADU, which was a referral from the Supreme Court of Queensland to the Queensland Civil and Administrative Tribunal (QCAT) to consider ADU’s capacity to defend review proceedings pursuant to the DPSO Act.
- At  Member Kanowski helpfully identifies the relevant decisions as follows:
“The more profound impact of the mental illness is upon ADU’s ability to freely and voluntarily make decisions about such a matter. Defending a review proceeding would involve a series of decisions, such as whether to engage a lawyer, whether to present evidence, the type of evidence to be presented, whether to cross-examine witnesses, what questions to ask in cross-examination, what submissions to make, and so on. There may then be decisions required about the prospects for an appeal, and whether to initiate or defend an appeal. A person subject to a continuing detention order may also wish to decide from time to time whether an application to the Supreme Court for leave to initiate a review should be made.”
- Further at  Member Kanowski identifies that the person needs to be in a position “to make informed and rational decisions about how to conduct a DPSO Act proceeding” and to be able to “engag[e] with the real questions before the court, such as whether … he poses a serious danger to the community, and if so, how that risk should be met”. (emphasis added)
- This last consideration highlights a key difference with the conduct of “ordinary” civil proceedings.
- Under the DPSO Act key concepts relevant to the proceedings include:
- (a)Whether the Court is satisfied that the prisoner is a serious danger to the community in the absence of a division 3 order.
- (b)Whether there is “acceptable, cogent evidence” on which the Court can be satisfied of (a) to a high degree of probability and the evidence is ‘of sufficient weight to justify the decision”.
- (c)If the Court is satisfied of (a), the Court may order that the prisoner be detained in custody for “an indefinite term for control, care or treatment” or that the prisoner be released from custody subject to “the requirements it considers appropriate that are stated in the [supervision] order”.
- (d)In deciding to make either of these orders,
- the paramount consideration is to be the need to ensure adequate protection of the community; and
- the Court is to consider whether:
- adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- the requirements under section 16 DPSO Act can be reasonably and practicably managed by corrective services officers.
- Section 13(4) also identifies considerations that the Court must have regard to in deciding whether a prisoner is a serious danger to the community. These identified considerations are broad and include efforts by the prisoner to address the cause or causes of the offending behaviour. It also includes “any other relevant matter”.
- In light of the key concepts under section 13 and the breadth of the considerations that must be taken into account, a respondent faced with a DPSO Act proceeding would necessarily be required to have a significant grasp of the potential issues, and the interplay of those issues, that could impact whether a respondent remains in custody indefinitely or alternatively the ways that risks could be managed if released on a supervision order.
- Section 16 sets out the requirements for supervision orders. This includes that any supervision order is to include a requirement that the prisoner comply with “every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order”. Directions can include a curfew, residing at an approved residence and participation in rehabilitation or treatment programs.
- In light of the type of matters that may be included in a supervision order, a respondent faced with a DPSO Act proceeding would necessarily be required to have a significant understanding of the need for compliance with the requirements and also steps that the respondent could take (if they decided to do so) to proactively propose to manage the risks. For example, identifying appropriate accommodation.
- The statutory scheme is also to be understood in light of some important principles which have been recognised and discussed in the relevant authorities.
- The Court of Appeal in Attorney-General v Francis  1 Qd R 396 at  stated:
“The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”
- Accordingly, a respondent faced with a DPSO Act proceeding should be capable of understanding that a supervision order should be preferred to a continuing detention order if the protection of the community is adequately ensured. This would require an ability to engage with questions of risk, strategies to mitigate risks and compliance with requirements to mitigate the risk.
- Also relevantly, McMurdo J in Attorney-General for the State of Queensland v S  QSC 157 at  said:
“Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence, Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:
‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’
Similarly, in Yeo v Attorney-General (Qld), Margaret McMurdo P (with whom White JA agreed) said:
“ Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or a supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland  QSC 268, -; Attorney-General v DGK  QSC 73, ). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.” (footnotes omitted)
- Accordingly, a respondent faced with a DPSO Act proceeding should be capable of understanding that a supervision order should be structured to meet the adequate protection of the community, not that all risk is eliminated. Again, this would require an ability to engage with questions of risk, strategies to mitigate risks and compliance with requirements to mitigate the risk.
- The issue of whether a respondent will properly comply with a supervision order was considered in the case of Attorney-General for the State of Queensland v Fardon  QCA 155. In that case, the Chief Justice, with whom Fraser JA and Mullins J agreed, said at :
“These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that ‘there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order’.”
- A respondent faced with a DPSO Act proceeding should also be capable of understanding that their willingness or otherwise to submit to a “regime of tight control” is a key factor.
- It is not uncommon in proceedings under the DPSO Act for respondents to be diagnosed with a variety of mental health conditions. The legislative scheme recognises that psychiatric and psychological evidence is a relevant consideration. Further the scheme builds into the process reports of psychiatrists assessing the level of risk that the prisoner will commit another serious sexual offence.
- It is not on every occasion that the issue of capacity to conduct proceedings will arise merely as a result of a diagnosis of a mental health condition. However, depending on the diagnosis, this may directly affect the ability of a respondent to be able to make rational decisions in respect of the DPSO Act proceedings.
- A clear illustration of this is found in the reasons of Member Kanowski in In applications about matters concerning ADU:
 All of the psychiatrists whose reports are before the tribunal consider that ADU has schizophrenia, along with some other conditions. The schizophrenia is characterised by entrenched delusional beliefs of persecution involving ADU’s convictions for sexual offences against children. ADU believes he did not commit the offences despite compelling eyewitness evidence in one instance and earlier admissions in others. He believes there is a conspiracy against him involving the courts, lawyers, and mental health practitioners. He does not believe he has a mental illness. He will not willingly participate in treatment for mental illness or in sexual offender rehabilitation.
 … I accept the diagnosis of schizophrenia, and the characterisation of the persecutory beliefs as delusional.
 ADU’s tangentiality affects his ability to communicate any decisions he makes in relation to the review proceeding in the Supreme Court. However, this barrier can probably be overcome if ADU is allowed a lot of time to express himself.
 The more profound impact of the mental illness is upon ADU’s ability to freely and voluntarily make decisions about such a matter…
 ADU has such strong and preoccupying delusions of persecution, involving a denial of guilt and a distrust of lawyers, that he is in no position to make informed and rational decisions about how to conduct a DPSO Act proceeding. He rules out the option of seeking legal representation, even though representation would, objectively, be beneficial. ADU is unable to accept and adjust to the reality that the court will proceed on the basis that he committed the offences in question. His fixation on innocence prevents him from engaging with the real questions before the court, such as whether, as a convicted child sex offender with ongoing mental illness, he poses a serious danger to the community, and if so, how that risk should be met.
 Put a different way, ADU’s delusions and preoccupations deprive him of the ability to understand the nature and effect of decisions, such as the futility of a decision to defend the proceeding on the basis that he is innocent.”
- This analysis highlights some of the particular considerations in respect of proceedings under the DPSO Act and also is an example of particular concerns arising from specific mental health conditions when evaluated in the context of the relevant considerations under the statutory scheme. The ability of a respondent to be able to make rational decisions about issues relevant to a DPSO Act proceeding is a critical threshold issue.
- Counsel for the applicant in submissions explored other authorities that may inform, and reinforce, the principles that are to be applied in respect of an assessment of capacity.
- The decision of Vishniakov v Lay helpfully identifies some general principles. The most relevant principles to the current considerations are:
“(k) The words ‘in relation to the proceeding’ in r 15.01 are important because they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.
(l) The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.
(m) A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer.
(n) Depending on the nature and circumstances of the particular case, there may be many factors relevant to the determination of whether a person lacks capacity in relation to a proceeding. As a general rule, however, the following have been found to be relevant:
(i) whether the person had the ability to understand that they required advice in respect of the relevant legal proceeding;
- (ii)whether the person had the ability to communicate this requirement to someone who could arrange an appropriate advisor or, alternatively, whether he or she could arrange such an advisor of their own accord;
- (iii)whether the person had the ability to instruct the advisor with sufficient clarity to enable that advisor to understand the situation and to advise the person appropriately; and
- (iv)whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.” (footnotes omitted)
- Similarly, Kyrou J in Slaveski v Victoria analysed the assessment criteria from the perspective of both a represented and unrepresented litigant. In addition to the statement of general principles and overview of the approach, Kyrou J recognised that the level of mental capacity required to be a “capable” litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage Court proceedings in an unfamiliar and stressful situation. This highlights an additional consideration in respect of a respondent in a DPSO Act proceeding if it is proposed that they appear unrepresented.
- Edmonds J in Owners of Strata Plan No 23007 v Cross stated:
“ All of the members of the Court of Appeal endorsed the approach taken by Boreham J in the unreported case of White v Fell (EWCACiv, 12 November 1987), where the issue of incapacity arose in the context of the limitation of actions. In that case his Honour observed:
The expression ‘incapable of managing her own affairs and property’ must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided … It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice … Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately … Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive. [Emphasis added]
 The ability to properly instruct an advisor was also referred to by Lord Denning MR in the limitation case of Kirby v Leather  2 QB 367; 2 All ER 441; 2 WLR 1318. In upholding the trial judge’s decision that the plaintiff was of unsound mind so as to prevent the relevant period of limitation from running against him, his Lordship said (at QB 384; All ER 444; WLR 1327–8):
After a time he was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter. But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have. In particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.
 See also Martin v Azzopardi (1973) 20 FLR 345 at 347 per Fox J where his Honour considered the content of the test under the Australian Capital Territory Supreme Court Rules.
 In light of what is said in these authorities and having regard to the use of the words “in respect of the proceedings” in the FCR, the following are relevant to determining capacity in the present case:
- (a)whether Ms Cross had the ability to understand that she required advice in respect of the creditor’s petition which had been left with her;
- (b)whether she had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, that she could arrange such an appointment of her own accord;
- (c)whether she had the ability to instruct her advisor with sufficient clarity to enable him or her to understand the situation and to advise her appropriately; and
- (d)whether she had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as she might receive.”
- Peter Lyons J in Aziz v Prestige Property Services Pty Ltd expressed a similar formulation as follows:
“ To come to a determination on this question of capacity it is helpful to break that issue up into four discreet issues because of the elements contained in the definition of capacity under the Act.
- (a)Did the plaintiff understand the nature of the decision he had to make?
- (b)Did the plaintiff understand the effect of the decision he was making?
- (c)Did the plaintiff freely and voluntarily make a decision about the matter?
- (d)Did the plaintiff communicate the decision about the matter?
 Significantly if the answer to any one of the questions is “no” then the test for capacity has not been fulfilled.”
- The concept of “fitness for trial” under section 613 of the Criminal Code and section 118 of the Mental Health Act 2016 (Qld) may also provide some assistance in evaluating the level of capacity reflecting the aspect of gravity of a proceeding under the DPSO Act.
- The test in R v Presser in respect of fitness for a criminal proceeding is as follows:
“… And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.
He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”
- The need to ensure a fair trial remains relevant to a proceeding under the DPSO Act, and this test is a helpful yardstick in considering DPSO Act proceedings. If a person is not fit for trial under the Presser test, then they would clearly have impaired capacity in respect of DPSO Act proceedings. If a person was borderline or it was not clear, then more careful consideration would need to be given to the particular attributes of, and decisions required in DPSO Act proceedings.
- As highlighted by the analysis outlined above, it is impossible to prescribe an assessment criteria 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 along the lines identified above. 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.
- It is now necessary to consider the particular circumstances of the respondent in this case.
Is the respondent a person with impaired capacity?
- The evidence currently before the Court relevant to the respondent includes the following:
- (a)The respondent is currently an inpatient at the High Security Inpatient Service at The Park – Centre for Mental Health. He was transferred from prison under Chapter 3 of the Mental Health Act 2016 (Qld).
- (c)From 2014 to 2018, the Respondent’s clinical management was under a statutory Involuntary Treatment Order (ITO) (now described as a “Treatment Authority”).
- (d)For the Division 3 Hearing in September 2019, the respondent was examined by Dr Moyle, Dr Timmins and Dr Harden and at that time the psychiatric diagnoses were:
- Dr Moyle: Paranoid Schizophrenia (differential Drug Induced Psychosis); Psychopathy; Antisocial Personality Disorder; Drug and Alcohol Use Disorders; Childhood ADHD (possible); and possible Paedophilia (non-exclusive by age or gender).
- Dr Timmins: similar to Dr Moyle, but with the addition of Exhibitionism (and possible rape fantasies).
- Dr Harden: Antisocial Personality Disorder – severe, with Psychopathic features; Paedophilia, Nonexclusive (provisional); Polysubstance Abuse – in remission due to incarceration; Schizophrenia – Paranoid Type; and Mild Intellectual Disability.
- (e)For the first Annual Review, the diagnostic formulations of Dr Harden and Dr Timmins remain unchanged.
- The issue of “impaired capacity” requires a consideration of a medical or psychiatric assessment.
- The psychiatric evidence prepared for DPSO Act proceedings (whether a pre-application psychiatrist retained by the Attorney-General or a Court appointed psychiatrist) usually specifically addresses the level of risk that the prisoner will commit another serious sexual offence if released from custody or if released from custody without a supervision order being made.
- The reports prepared for a DPSO Act proceeding do not usually undertake a capacity assessment. A capacity assessment may consider many similar matters but has a different focus.
- Psychiatrists do undertake assessments of “fitness for trial” in the context of criminal proceedings, and are familiar with the application of the test in R v Presser.
- If an issue of potential impaired capacity arose in respect of a particular individual, it may be appropriate for psychiatric evidence to be obtained in respect of the specific capability to respond to DPSO Act proceedings (informed by the discussion of the criteria above).
- As a general proposition, the psychiatrists engaged to prepare risk assessment reports may be appropriate to provide an assessment in respect of capacity. This must, however, be considered on the facts of a particular case and may be subject to any particular concerns about conflicts or other matters.
- If an issue as to capacity arises at an early stage in DPSO Act proceedings, it may be appropriate for the psychiatrists to consider capacity at the same time as considering the risk assessment. This will assist in the expeditious handling of the issue of capacity as well as any application or review under the DPSO Act.
- The applicant led evidence that there are difficulties in obtaining an assessment of the capacity of a prisoner to engage in DPSO Act proceedings.
- (a)The Office of the Chief Psychiatrist is unable to assist in assessing the respondent and providing a report regarding his fitness for trial or capacity to engage in DPSO Act proceedings.
- (b)Such an assessment would be outside the scope of the Prison Mental Health Service.
- (c)Psychiatrists who previously prepared reports may be assisted in any further assessment of capacity by being provided with all relevant material and also the identification of any particular concerns raised by the respondent’s legal team.
- Consistent with this approach, Dr van de Belt who treated the respondent through the Prison Mental Health Service provided a “treating doctor’s letter” on 6 April 2021, but was not able to provide a capacity assessment report as that is outside the usual role of the prison Mental Health Service.
- Dr van de Belt was able to attend the hearing and gave further oral evidence 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 van de Belt’s willingness to attend and give further evidence in this regard.
- Relevantly for the current consideration of the respondent’s capacity, Dr van de Belt gave the following evidence:
- (a)The respondent suffers from paranoid schizophrenia and presents with prominent persecutory delusions which impacted his ability to communicate in a relevant or understandable way.
- (b)The respondent thinks that “he has a chip in his gut, that the chip causes him to hear voices. That everyone around him has a chip in their gut, that that chip controls other people, it tells them what to do, it sometimes tells people to hit him. And he has these persecutory beliefs that everyone around him is trying to mess with his head.”
- (c)Further, the respondent has persecutory delusions that “there is someone, or people, which he once referred to as the investigator, watching over him, telling him what other people are doing around him, but also watching other people around him, and consequently because the other people are being watched, they are leaving him alone, and if this person wasn’t watching over him he would have been bashed or killed by now. And also persecutory beliefs that he is being punished for what Hitler and the generals did.”
- (d)Following a review of the medical reviews that have occurred in the High Secure Inpatient Unit since the respondent has been admitted, the respondent has further elaborated that he is being controlled in what he is saying and made to say things that he does not want to and made to do things that he does not want to.
- (e)The respondent has poor insight into his mental illness and his symptoms, including that he cannot recognise he has a mental illness and he was unable to make decisions about treatment. As a consequence, Dr van de Belt started proceedings under the Mental Health Act 2016 (Qld) and since then the respondent has been placed on a treatment authority by the High Security Inpatient Unit.
- (f)Dr van de Belt has concerns about the respondent’s ability to consider the sorts of decisions that he may need to make in relation to DPSO Act proceedings. She did observe that his psychotic symptoms impacted on a number of his cognitive abilities. It is likely he would not be able to understand any legal advice given to him by his legal representatives and would not be able to give coherent and rational instructions to his legal representatives.
- (g)The respondent’s persecutory delusions would influence his decision to seek to remain where he is (i.e. in prison) and he would not be able to rationally evaluate other options such as the possibility of release on a supervision order subject to strict conditions.
- (h)There is considerable uncertainty as to how long the respondent’s recovery may take. It is dependant on how the respondent responds to the particular anti-psychotic treatment that is commenced. The respondent has previously been treated for a number of years under a treatment authority but continued to report some symptoms for a number of months up to a year before he achieved a “complete resolution”. The respondent may have significant improvement once being treated, which could take three to six months if the next trialled antipsychotic is successful.
- The placement of the respondent on a treatment authority by the High Security Inpatient Unit may be sufficient on its own to establish impaired capacity for the purposes of rule 72 UCPR without more.
- In any event, I am satisfied on the evidence contained in the psychiatric reports and the oral evidence of Dr van de Belt that the respondent has impaired capacity to a sufficient level to trigger rule 72 UCPR.
- Consideration then needs to be given to the appropriate way to proceed with the DPSO Act application in light of this conclusion.
Litigation guardian appointed under UCPR
- Rule 72 UCPR provides that the Court may make directions as to how to proceed where a party to a proceeding becomes a person with impaired capacity.
- Part 4 of the UCPR sets out some further provisions dealing with persons under a legal incapacity. Rules 93, 94 and 95 UCPR state as follows:
“93 Litigation guardian of person under a legal incapacity
- (1)A person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian.
- (2)Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party’s litigation guardian.
- (3)A party’s litigation guardian who is not a solicitor may act only by a solicitor.”
94 Who may be a litigation guardian
- (1)A person may be a litigation guardian of a person under a legal incapacity if the person—
- (a)is not a person under a legal incapacity; and
- (b)has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity.
- (2)If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends.
- (3)A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968, may not be a litigation guardian.”
95 Appointment of litigation guardian
- (1)Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person’s written consent to be litigation guardian of the party in the proceeding.
- (2)If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian.”
- While section 82 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) provides that QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity for matters, the GAA Act also expressly provides that the Act does not affect the Court rules about a litigation guardian for a person under a legal incapacity.
- The interaction between the GAA Act and the UCPR regarding the appointment of a litigation guardian was commented upon by Member Kanowski in In applications about matters concerning ADU as follows:
“… However, I note that while the tribunal has jurisdiction to make declarations about capacity, [s81(1)(a), s 14(91) GAA Act] the legislation does not give the tribunal exclusive jurisdiction in that area. It appears that the court’s attention in the Till case was not drawn to section 239 of the Guardianship Act, which says that the Guardianship Act does not affect rules of court about a litigation guardian for a person under a legal incapacity. I mention this because it seems that in a case such as the present, it would be open to the court to itself determine the issue of capacity, and if necessary appoint a litigation guardian, rather than ask the tribunal to conduct a proceeding. That would probably be a speedier course. However, it may be that the court contemplated this option but considered it necessary, or more appropriate, for the tribunal to determine the question of capacity.”
- Whilst this Court has power to appoint a litigation guardian pursuant to the UCPR, it is necessary to consider whether it is appropriate in the particular circumstances.
Is the appointment of a litigation guardian under the UCPR appropriate?
- There are a number of matters to consider in respect of a litigation guardian, some of which are practical:
- (a)no individual has been identified who would be prepared or appropriate to act as a litigation guardian.
- (b)Legal Aid has indicated to the Court:
- it would oppose one of its officers being appointed to act as a litigation guardian.
- Legal Aid funding does not extend to the appointment of a litigation guardian and no guideline exists for such funding.
- 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.
- The Queensland Law Society has no referral list in relation to litigation guardians.
- (c)The Public Guardian indicated its position to Counsel for the applicant which was passed on to the Court in submissions:
- The Public Guardian would not want to be appointed as a litigation guardian by order of the Court under the UCPR.
- The Public Guardian could be appointed as a guardian for legal matters and personal matters, if necessary, through a referral to QCAT process.
- The Public Guardian Act 2014 (Qld) (Public Guardian Act) establishes the Public Guardian and identifies the role of the Public Guardian as including:
“… in relation to adults who have impaired capacity for a matter is to protect their rights and interests.”
- The functions of the Public Guardian are those given under the Public Guardian Act or another Act. Section 12 identifies certain functions in relation to an adult with impaired capacity for a matter which includes:
“(f) acting as guardian if appointed by the tribunal”.
- The reference to “tribunal” is a reference to QCAT. This is also to be read in the context of section 8 which outlines the relationship with the GAA Act. In particular that the GAA Act provides a scheme for QCAT to appoint a guardian for an adult with impaired capacity for personal matters “to make particular decisions and do particular other things for the adult in relation to the matters.”
- The provisions in the Public Guardian Act tend to support an interpretation of the Public Guardian’s statutory function in respect of acting as a guardian for an adult with impaired capacity as being predicated on an appointment by QCAT pursuant to the GAA Act. This tends to support a conclusion that it would not be appropriate to appoint the Public Guardian as a litigation guardian pursuant to the UCPR provisions.
- There are other factors which also tend to support a conclusion that the appointment of a litigation guardian by Court order pursuant to the UCPR provisions would not be appropriate in these types of matters. These include:
- (a)The nature of DPSO Act proceedings (see discussion above as to the types of issues which may arise, the decisions which may need to be made, the gravity of the proceedings and the risk to the liberty of the respondent).
- (b)Factors beyond the mere conduct of the litigation are relevant to the considerations in DPSO Act proceedings. For example, factors such as identifying and arranging suitable accommodation could be a determining factor in the outcome of an application or review.
- (c)A prisoner’s property vests in the Public Trustee in certain circumstances (which are likely to arise in DPSO Act proceedings) and the Public Trustee is responsible for managing the estate of the prisoner. The Public Trustee may, if necessary, be appointed an administrator under the GAA Act if a substitute decision maker is necessary in respect of “financial matters” as identified in the GAA Act.
- (d)If the incapacity extends beyond just “legal matter[s]”, to include “personal matter[s]” such as accommodation, then the litigation guardian would not be able to adequately assist the respondent to fully consider and address the issues of risk which are central to DPSO Act proceedings.
- It is also necessary to consider the nature of the incapacity itself. That is, whether the incapacity arises from mental illness, intellectual disability, or a combination of both.
- The appointment of a litigation guardian may be appropriate in some circumstances, for example a short term temporary incapacity due to mental illness. A litigation guardian may be appointed (assuming one can be identified) for the duration of the incapacity, such as while treatment is being undertaken.
- However, even where an incapacity due to mental illness may be temporary, where there is considerable uncertainty as to the treatment period and the likely outcome of any treatment, it may point to a litigation guardian being inappropriate. For example, a relevant consideration may also be whether a mandatory review under the DPSO Act must be completed in that same period.
- In respect of an incapacity as a result of an intellectual disability or a combination of both mental illness and intellectual disability, a litigation guardian may not be able to appropriately deal with all the “personal matters” that may arise in respect of DPSO Act proceedings.
- In respect of the respondent, taking into account the evidence as to the nature and extent of his incapacity and the need to consider both “legal matters” and matters that go beyond just the legal proceedings, it is not appropriate to appoint a litigation guardian by order of the Court pursuant to the UCPR provisions.
- What then is the appropriate way to proceed?
Guardianship and Administration Act 2000 (Qld)
- The GAA Act is described as:
“An Act to consolidate, amend and reform the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity, to confer jurisdiction on the Queensland Civil and Administrative Tribunal for particular purposes, to create an office of Public Advocate, and for other purposes.”
- Section 5 of the GAA Act acknowledges certain matters including the following:
“(a) an adult’s right to make decisions is fundamental to the adult’s inherent dignity;
- (b)the right to make decisions includes the right to make decisions with which others may not agree;
- (c)the capacity of an adult to make decisions may differ according to—
- (i)the type of decision to be made, including, for example, the complexity of the decision to be made; and
- (ii)the support available from members of the adult’s existing support network;
- (d)the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
- (e)an adult with impaired capacity has a right to adequate and appropriate support for decision-making.”
- Section 6 outlines the purpose of the GAA Act to achieve a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and also the adult’s right to adequate and appropriate support for decision-making.
- The statutory scheme starts from the basis that an adult is presumed to have capacity for a matter. However, the GAA Act then sets out a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult. The GAA Act also confers jurisdiction on QCAT to administer aspects of the scheme.
- The GAA Act scheme also relevantly provides for a guardian to be appointed in relation to personal matters and an administrator appointed for financial matters under the GAA Act.
- The GAA Act categorises matters into four categories being “personal matter”, “special personal matter”, “special health matter” and “financial matter”. Schedule 2 contains extensive definitions of these types of matters.
- Part 1 of Schedule 2 contains the definition of “financial matter" which includes as follows:
“A financial matter, for an adult, is a matter relating to the adult’s financial or property matters, including, for example, a matter relating to 1 or more of the following—
- (a)paying maintenance and accommodation expenses for the adult and the adult’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult;
- (b)paying the adult’s debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law;
- (g)paying rates, taxes, insurance premiums or other outgoings for the adult’s property;
(o) a legal matter relating to the adult’s financial or property matters;
(p) withdrawing money from, or depositing money into, the adult’s account with a financial institution.”
- Part 2 sets out “personal matter” and the definition includes:
“A personal matter, for an adult, is a matter, other than a special personal matter or special health matter, relating to the adult’s care, including the adult’s health care, or welfare, including, for example, a matter relating to 1 or more of the following—
- (a)where the adult lives;
- (b)with whom the adult lives;
(ba) services provided to the adult;
- (c)whether the adult works and, if so, the kind and place of work and the employer;
- (f)day-to-day issues, including, for example, diet and dress;
- (g)health care of the adult;
- (i)a legal matter not relating to the adult’s financial or property matter;
(l) who may have access visits to, or other contact with, the adult;
(m) advocacy relating to the care and welfare of the adult.”
- Section 4 of Schedule 2 deals with “health matter” and states as follows:
“A health matter, for an adult, is a matter relating to health care, other than special health care, of the adult.”
- Section 5 of Schedule 2 provides further detail in relation to health care as follows:
“(1) Health care, of an adult, is care or treatment of, or a service or a procedure for, the adult—
- (a)to diagnose, maintain, or treat the adult’s physical or mental condition; and
- (b)carried out by, or under the direction or supervision of, a health provider.
- Part 3 of Schedule 2 sets out a further definition in relation to “legal matter”. Section 18 defines “legal matter” as follows:
“A legal matter, for an adult, includes a matter relating to—
- (a)use of legal services to obtain information about the adult’s legal rights; and
- (b)use of legal services to undertake a transaction; and
- (c)use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and
The Succession Act 1981, part 4 enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person’s estate if adequate provision is not made from the estate for the dependant’s proper maintenance and support.
- (d)bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding.”
- Schedule 4 of the GAA Act also contains a dictionary which contains various definitions.
- “Capacity” is defined as follows:
“capacity, for a person for a matter, means the person is capable of—
- (a)understanding the nature and effect of decisions about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.”
- Further, “impaired capacity” is defined as follows:
“impaired capacity, for a person for a matter, means the person does not have capacity for the matter.”
- The GAA Act also gives QCAT certain functions, including:
“(a) making declarations about the capacity of an adult, guardian, administrator or attorney for a matter;
- (b)considering applications for appointment of guardians and administrators;
- (c)appointing guardians and administrators if necessary and reviewing the appointments;
- (d)making declarations, orders or recommendations, or giving directions or advice, in relation to …. guardians and administrators”.
- QCAT’s jurisdiction is exclusive for the appointment of guardians and administrators for adults with impaired capacity for matters.
- In respect of a person, QCAT:
- (a)may make a declaration about the capacity of an adult, guardian, administrator or attorney for a matter pursuant to section 146 of the GAA Act.
- (b)may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, pursuant to section 12 of the GAA Act.
- In respect of appointing a guardian or administrator, QCAT may do so if it is satisfied in respect of the specified matters set out in section 12(1) of the GAA Act, namely:
“(a) the adult has impaired capacity for the matter; and
- (b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
- (c)without an appointment –
- (i)The adult’s needs will not be adequately met; or
- (ii)The adult’s interests will not be adequately protected.”
- QCAT has power to make an appointment on terms it considers appropriate.
- Given the current evidence in respect of the impaired capacity of the respondent, and the fact that there is a current application under the DPSO Act which must be completed by 18 September 2021, consideration by QCAT of the appropriateness of a declaration as to capacity and the appointment of a guardian would be an available option consistent with the objects and purpose of the GAA Act and the powers and functions of QCAT under the GAA Act.
- Consideration at this stage needs to be given as to the appropriate mechanism for the question of capacity of the respondent, to be brought before QCAT.
Process for issue of capacity to be brought before QCAT
- In the decision of Till v Nominal Defendant, McMeekin J made orders referring the question of a person’s capacity to QCAT to investigate matters relating to capacity and to appoint a guardian if needed. His Honour reasoned, that if the plaintiff in that case lacked capacity then the Supreme Court exercising its parens patriae jurisdiction has a duty to protect and assist him, including referring the issue of capacity for further enquiry. On the evidence in that case, there was a sufficient basis to invoke the inherent jurisdiction and it was in the interests of all the parties that the issue of capacity be determined.
- McMeekin J ordered that the question of capacity to bring the proceedings pending in the Supreme Court be referred to QCAT for determination pursuant to the GAA Act. Further his Honour, ordered that a copy of the reasons, the transcript from the hearing and a copy of specified evidence be provided to the Registrar of QCAT.
- Davis J followed the reasoning of McMeekin J in the referral of the question of capacity to defend DPSO Act review proceedings to QCAT for determination pursuant to the GAA Act, which culminated in the QCAT decision in In applications about matters concerning ADU.
- Section 240 of the GAA Act expressly preserves the parens patriae jurisdiction of this Court:
“This Act does not affect the court’s inherent jurisdiction, including its parens patriae jurisdiction”.
- The High Court considered the parens patriae jurisdiction in Secretary, Department of Health and Community Services v JWB and SMB. In considering the application of the principles to the treatment of a child, the Court considered the history and scope of the jurisdiction. In the majority judgment of Mason CJ, Dawson, Toohey and Gaudron JJ, their Honours stated:
“As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve. His Lordship pointed out that ‘[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.’ In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:
‘[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.’
When that case was taken on appeal to the House of Lords, Lord Redesdale noted:
‘Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way.’
Lord Redesdale went on to say that the jurisdiction extended ‘as far as is necessary for protection and education’.
To the same effect were the comments of Lord Manners who stated that ‘[i]t is ... impossible to say what are the limits of that jurisdiction’. The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilization. No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power.”
- Brennan J also stated:
“Although a power to authorize a therapeutic sterilization resides in parents or other guardians, its exercise is subject to supervision by the court in exercise of its parens patriae jurisdiction. That jurisdiction was originally vested by the royal prerogative in the English Court of Chancery and is vested in courts whose jurisdiction is defined by reference to the jurisdiction of that Court as it stood before the warrant delegating the prerogative power to the Lord Chancellor was revoked. The nature of the jurisdiction was stated by Lord Esher M.R. in Reg. v. Gyngall:
‘The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.’
The parens patriae jurisdiction has become essentially protective in nature and protective orders may be made either by the machinery of wardship or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected. The court is thus vested with a jurisdiction to supervise parents and other guardians and to protect the welfare of children. Although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Fitzgibbon L.J. in In re O'Hara and adopted by the House of Lords in J. v. C:
‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.”
- The Queensland Court of Appeal considered the parens patriae jurisdiction in Christensen v Christensen. McMurdo P, with whom McPherson JA and Shepherdson J agreed, referred to the history of the parens patriae jurisdiction and the manner in which it “came to encompass adults who were mentally incompetent”. Further her Honour commented that:
“Nothing in Schedule 5 of the Mental Health Act 1974 detracts from the inherent parens patriae jurisdiction of the Supreme Court: the jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation: see Re E.”
- In respect of the parens patriae jurisdiction, McMurdo P stated the relevant principles as follows:
“The parens patriae jurisdiction is not to resolve disputes between litigants but to protect the welfare of those needing protection because of an inability to protect themselves, such as children or intellectually disabled citizens …. All decisions to be made in the exercise of the jurisdiction must therefore be based on the principle that [the individual’s] welfare is the paramount consideration: see Marion’s Case. This requires that the jurisdiction be exercised with caution: see Re E. The parens patriae jurisdiction will be invoked when it is clear on the material that the order sought is positively in the interests of a child or person within the Court's protection: see Re B (A Minor), Re A (a child); Re W (An Infant) and Borek v Anastoupolou.”
- Chesterman J (as his Honour then was) considered the jurisdiction in State of Queensland v Nolan in the context of the separation of conjoined twins. His Honour stated:
“ The jurisdiction appealed to is that which was formally vested in the Sovereign but was transferred in centuries past to the Lord Chancellor and from him personally to the Courts of Chancery and then to those courts which, like the Supreme Court, exercise the jurisdiction of that court. It is exercised to protect the person and property of subjects, particularly children who are unable to look to their own interests.
The power is to be exercised for the protection of those whose plight enlivens it. See also Fountain v. Alexander (1982) 150 C.L.R. 615 at 633.”
- Lee J in H v Nominal Defendant (Queensland) considered the jurisdiction in the context of a person under a disability in civil proceedings and recognised:
“… it is sometimes overlooked that the Court, when such matters are drawn to its notice, has an independent and responsible role under its parens patriae jurisdiction, to act in the best interests of the person concerned.”
- In VJC v NSC, Margaret Wilson J considered the jurisdiction in the context of an intellectually disabled adult. Her Honour summarised the relevant history of the parens patriae jurisdiction as follows:
“ The common law drew a distinction between persons of unsound mind from birth (‘idiots’) and those who became so subsequently (‘lunatics’). Control of the property and persons of those of unsound mind was the prerogative right of the Sovereign acting as parens patriae. In time it was delegated to the Lord Chancellor under warrant of the royal sign manual: Re D (A Lunatic Patient) (No 2)  VLR 467 at 477- 478 per Dixon AJ; Re Magavalis  1 QdR 59 at 61 per McPherson J. The Lord Chancellor would direct a commission de lunatico inquirendo asking a jury to determine whether someone was of unsound mind and unable to manage his affairs. If the jury found that he was, then the Lord Chancellor could appoint a committee or direct inquiries and make orders for the care and protection of his person and property: Ex parte Cranmer (1806) 12 Ves Jun 445; 33 ER 168; Re D (A Lunatic Patient) (No 2) at 478; Re Magavalis at 61.
 This responsibility of the Lord Chancellor was given to the Supreme Court of Queensland by s 22 of the Supreme Court Act 1867 (now s 201 of the Supreme Court Act 1995). The commission de lunatico inquirendo was abolished by cl 4(1) of the 5th Schedule to the Mental Health Act 1974, which provided that where the Court was satisfied that a person was mentally ill and incapable of managing his affairs it might appoint a committee of his estate or his person.”
- Consistent with the authorities, her Honour noted that the jurisdiction is “always exercised with great caution” and the paramount consideration is “what is in [the individual’s] best interests.”
- In Dickson v Australian Associated Motor Insurers Limited Mullins J (as her Honour then was) considered the relationship between the GAA Act and the parens patriae jurisdiction and observed:
“… In Queensland, some aspects of the court’s protective jurisdiction were covered by the GAA, but the Legislature expressly specified in s 240 of the GAA that the GAA does not affect the court’s inherent jurisdiction, including its parens patriae jurisdiction: this was referred to in Willett v Futcher (2005) 221 CLR 627 at . It was under the parens patriae jurisdiction of the court that the practice developed of the requirement of court approval to give validity to an agreement that had been negotiated on behalf of a person under a disability.”
- From these authorities, some general principles in respect of the parens patriae jurisdiction of the Supreme Court can be extracted:
- (a)The jurisdiction covers the mentally ill and minors, as well as others who are deprived of capacity by illness or accident.
- (b)The jurisdiction is of broad, potentially unlimited, scope but is subject to express limitation by statute.
- (c)The Court’s obligation on the Crown’s behalf is to protect the best interests of those who cannot protect themselves.
- (d)The jurisdiction should be exercised cautiously.
- The legislature has given QCAT the exclusive jurisdiction to consider and determine capacity and to appoint a guardian or administrator if necessary.
- Where, as in the current case, the issue of capacity has arisen this Court should take steps to ensure that the person with impaired capacity’s interests are adequately protected. This would include referral to QCAT of the issue of capacity and the person’s ability to defend or respond to proceedings under the DPSO Act.
- Given the parens patriae jurisdiction is to be exercised cautiously, I consider that it is appropriate to consider whether there is another option available and whether that alternative option should be exhausted prior to the exercise of the jurisdiction.
- Here, consideration has been given to the appointment of a litigation guardian under the UCPR provisions and that has been ruled out as not appropriate in the current circumstances to adequately protect the interests of the respondent in respect of the DPSO Act proceedings.
- 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.
- As was recognised by both McMeekin J and Davis J this process is somewhat circuitous, as this Court needs to be satisfied of impaired capacity to be able to refer the issue of capacity to QCAT. However, the satisfaction of impaired capacity is a threshold issue and it is ultimately for QCAT to undertake the necessary investigations and to make a declaration and/or appoint a guardian or administrator with such conditions as is necessary given its findings as to the limits and extent of the respondent’s capacity.
- Accordingly, I am satisfied that this Court has the power to refer the question of the respondent’s capacity to respond to the DPSO Act proceedings to QCAT to determine in accordance with the GAA Act. Further, I am satisfied that in the circumstances it is appropriate that the power is exercised.
- I also note that in respect of both a declaration about capacity and the appointment of a guardian and/or administrator, QCAT may do so on its own initiative or on the application of the individual or “another interested person”.
- Schedule 4 of the GAA Act defines “interested person” as follows:
“interested person, for another person, means a person who has a sufficient and genuine concern for the rights and interests of the other person”.
- Quite apart from the exercise of the parens patriae jurisdiction, the Court, by its inherent jurisdiction and in accordance with its supervisory function of proceedings before it, may be an interested person under the GAA Act such that it could refer the question of capacity to QCAT for consideration under sections 12(3) and/or 146(2) of the GAA Act.
- The applicant accepted that the Court could refer the question of capacity of the respondent to QCAT for determination. An issue was, however, raised in submissions as to the timing of such a procedure.
- In In applications about matters concerning ADU, the referral order was made in August 2020 and the final decision was made by QCAT in March 2021, being approximately 7 months.
- In submissions, the applicant raised concerns that even if a referral order was made at this stage, the current estimate for having a guardian appointed is between 6 to 9 months. The first annual review of the continuing detention order must be completed by 18 September 2021. In these circumstances, there is a real risk that the referral on the issue of the respondent’s capacity would not be determined in sufficient time to be able to meet the mandatory timing requirement in section 27 of the DPSO Act.
- Whilst the practical issue of timing presents some difficulties, I do not consider that those difficulties are such that a referral should not be ordered.
- 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 5194 of 2019 be referred to QCAT for determination.
- 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:
- (a)A copy of these reasons;
- (b)A copy of the transcript from the hearing on 13 May 2021;
- (c)A copy of the following documents from Supreme Court file BS 5194 of 2019:
- Affidavit of E Timmins filed 8 December 2020 (CFI 44);
- Affidavit of L C Ling filed 25 January 2021 (CFI 45);
- Affidavit of K Lavers filed 22 March 2021 (CFI 47); and
- Affidavit of L C Ling filed 12 April 2021 (CFI 50).
- 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.
Further orders in the Supreme Court proceedings
- I am also mindful of the operation of rule 72 UCPR and the DPSO Act proceedings are in effect stayed until determination of the referral.
- Given that the hearing and all submissions in respect of the current DPSO Act annual review application must be completed by 18 September 2021, I propose to order that a further review be listed on Friday 30 July 2021.
- In this regard 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 Friday 23 July 2021.
- If at the review it appears likely that the referral will not be dealt with in sufficient time for the hearing of the annual review to be completed by 18 September 2021 consideration will need to be given at that stage as to how the first annual review hearing is to proceed.
- The timing of the first annual review is mandatory under section 27(1A) of the DPSO Act and subject to putting in place safeguards for the interests of the respondent (as far as is possible in the circumstances), the hearing would need to proceed even if the referral had not been finally determined.
- While this would not be ideal, the need to avoid a person’s continuous detention without the annual review being completed is also to be balanced against protecting the respondent as a result of his impaired capacity.
- 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 DPSO Act for the conduct of the first annual review. 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 first annual review so that all issues are properly ventilated as far as possible with the respondent’s interest in mind. This may be an appropriate approach given that the respondent’s liberty is at stake.
- I also note that it may be necessary for updated psychiatric reports to be prepared given the respondent is receiving on-going 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.
The order of the Court is that:
- The question of the respondent’s capacity to respond to the DPSO Act proceedings pending in the Supreme Court in BS 5194 of 2019 be referred to QCAT for determination.
- The application for the first annual review pursuant to division 3 of the DPSO Act be listed for review on Friday 30 July 2021.
- The parties be granted liberty to apply generally.
Further, the Court directs that:
- The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material:
- (a)A copy of these reasons;
- (b)A copy of the transcript from the hearing on 13 May 2021;
- (c)A copy of the following documents from Supreme Court file BS 5194 of 2019:
- (i)Affidavit of E Timmins filed 8 December 2020 (CFI 44);
- (ii)Affidavit of LC Ling filed 25 January 2021 (CFI 45);
- (iii)Affidavit of K Lavers filed 22 March 2021 (CFI 47); and
- (iv)Affidavit of LC Ling filed 12 April 2021 (CFI 50).
- 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 Friday 23 July 2021.
 See Exhibits “LCL-3” Summary Report of Psychologist Kylie Lavers dated 8 March 2021 and “LCL-4” Letter of Treating Psychiatrist Dr Chrystal van de Belt dated 6 April 2021 to the Affidavit of Liang Chai Ling sworn 12 April 2012.
 Respondent’s Outline of Submissions Regarding the Respondent’s Capacity dated 15 April 2021.
  QSC 3.
  QCA 446. Thomson v Smith  QCA 446 was decided before the Civil Proceedings Act 2011 (Qld) and amendment to the UCPR which commenced on 1 September 2012. Prior to 1 September 2012, the dictionary in the UCPR defined “person with impaired capacity” and “person under a legal incapacity” by “see Supreme Court of Queensland Act 1991, schedule 2”.
 At pp 9–10 -.
  QCAT, transcript of reasons delivered on 2 March 2021.
 DPSO Act, s 28(1).
 The issues identified in section 13 are relevant to both an initial application for a Division 3 order and also annual reviews under section 30 DPSO Act.
 Section 13(1) DPSO Act.
 Section 13(3) DPSO Act.
 Section 13(5) DPSO Act.
 Section 13(6) DPSO Act.
 Section 13(4)(e) DPSO Act.
 Section 13(4)(j) DPSO Act.
 Section 16(db) DPSO Act.
 Section 16A(2)(a).
 Section 16B(1)(a).
 Section 16B(1)(b).
 Section 13(4)(b) DPSO Act.
 Sections 11 and 13(4)(a) DPSO Act.
 (2019) 58 VR 375, 386–7 at  per Derham ASJ.
 (2009) 25 VR 160 at 183-5 at -.
 (2006) 233 ALR 296 at 307–9 – per Edmonds J.
  QSC 265 at 5-6 – per Peter Lyons J.
  VR 45 at 48 per Smith J.
 Most recent reports are: Affidavit of Dr Eve Timmins sworn 7 December 2020, Exhibit ET-2 at 17-18; Affidavit of Liang Chai Ling sworn 25 January 2021, Exhibit LCL-2 at 23 (Dr Harden’s Report dated 16 December 2020).
 Dr Van de Belt’s Report dated 6 April 2021 at 1.
 Affidavit of Robert John Moyle sworn 7 May 2019, Exhibit RJM-3 at 38 , 39 -, 42 .
 Dr Timmins’ Report dated 26 July 2019 at 34.
 Dr Harden’s Report dated 20 August 2019 at 19.
 Affidavit of Dr Eve Timmins sworn 7 December 2020, Exhibit ET-2 at 17-18; Affidavit of Liang Chai Ling sworn 25 January 2021, Exhibit LCL-2 at 23 (Dr Harden’s Report dated 16 December 2020).
 Section 11 DPSO Act.
 Affidavit of Amanda McLean sworn 15 April 2021 at .
 Affidavit of Amanda McLean sworn 15 April 2021 at -.
 Exhibit “AM-1” to the Affidavit of Amanda McLean sworn 15 April 2021 at -.
 Exhibit “LCL-4” to the Affidavit of Liang Chai Ling sworn 12 April 2021.
 T1-31.44-45; T-32.1–4.
 Section 239 GAA Act.
 Submissions filed on an amicus curiae basis in BS 8178/2020 which was heard consecutively with the current matter.
 Affidavit of Leigh Anne Smith filed in BS 8178/2020 which was heard consecutively with the current matter. While this affidavit was not read in this matter the general issues were referred to in this proceeding in oral submissions.
 Sections 9 and 10 Public Guardian Act.
 Section 11 Public Guardian Act.
 Section 8(2) Public Guardian Act.
 Sections 90 and 91 Public Trustee Act 1978 (Qld).
 Sections 7(f) and 9 of the GAA Act.
 These terms are defined in the GAA Act and are explained further in the next section of these reasons.
 Such as in respect of SLS where the first annual review must be completed by 18 September 2021.
 As defined in the GAA Act.
 See “personal matter” under the GAA Act.
 Leaving aside that if a guardian is appointed under the GAA Act, including the Public Guardian, then they may act as the litigation guardian pursuant to rule 94(2).
 Section 81 GAA Act.
 Section 82 GAA Act.
 Section 12(2) GAA Act.
 And subject to the outcome of the first annual review, there could be subsequent reviews if the continuing detention order is affirmed or ongoing requirements of a supervision order if the respondent is released subject to a supervision order.
  QSC 121.
 (1992) 175 CLR 218.
  2 S.C.R, at pp. 407-417; (1986) 31 D.L.R (4th), at pp. 14-21.
 ibid., at p. 410; p. 16.
 (1827) 2 Russ. 1, at p. 20 [38 E.R. 236, at p. 243].
 Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, at p. 131 [4 E.R. 1078, at p. 1081].
 ibid., at p. 136 [p. 1083].
 ibid., at p. 142 [p. 1085].
 See In re X. (A Minor),  Fam. 47, at pp. 51-52, 57, 60-61, 61-62.
 The breadth of the wardship jurisdiction of the English courts was emphasized in In re R. (A Minor).
 Fountain v. Alexander (1982), 150 C.LR, at p. 633, per Mason J.; and see Lowe & White, Wards of Court, 2nd ed. (1986), par. 1-2.
 Carseldine v. Director of Department of Children's Services (1974), 133 C.L.R 345, at p. 363.
 In re F.,  2 AC., at pp. 57-58, 7l.
  2 Q.B. 232, at p. 24l.
 In re McGrath (Infants),  1 Ch. 143, at pp. 147-148;  2 Ch. 496, at pp. 510-51l.
 Fountain v. Alexander (1982), 150 C.LR, at p. 626, per Gibbs CJ.
 In re N. (Infants),  Ch. 512, at p. 531; In re L. (An Infant),  P. 119, at pp. 156-157.
 Johnson v. Director-General of Social Welfare (Vict.) (1976), 135 C.L.R 92.  2 I.R. 232, at p. 240.
  A.C. 668, at p. 695.
 See Fountain v. Alexander (1982), 150 C.L.R, at p. 645; In re K.D., .
  QCA 241.
 At . See La Forest J in Re E  2 SCR 388 at 407–9.
 La Forest J in Re E  2 SCR 388 at 426.
  QCA 241 at .
 Secretary, Department of Health and Community Services (NT) v JWB and SMB  66 ALJR 300 at 314.
 (Supra) at 438.
 (1988) Appeal Cases 199.
 (1993) FLC 92-402.
 (1978) FLC 90-527.
 (1978) FLC 77, 799.
 (2002) 1 Qd R 454.
 (1997) QSC 233.
  QSC 068.
 At .
  QSC 69.
 At .
 For an overview of the history of the parens patriae jurisdiction going back to Roman times and the development in the United Kingdom see paper by Henry J “The right to die: limits of the parens patriae jurisdiction”, Succession Law Conference, Grays Inn, London, 4 September 2017.
 This is also consistent with the issues to be considered by QCAT under section 12 GAA Act.
 McMeekin J referred to a “Catch 22” in Till v Nominal Defendant  QSC 121 at  and Davis J to “the system is a little circuitous” in Transcript of Judgment, Attorney-General for the State of Queensland v [E], 6 August 2020.
 Sections 12(3) and 146(2) GAA Act.
  QCAT, transcript of reasons delivered on 2 March 2021.
 Applicant’s submissions at .
 I note that the applicant would not be involved in the QCAT referral and there needs to be a mechanism for an update to be able to be provided to the Supreme Court and the applicant as to the progress of the referral to QCAT.
 Which may in itself give rise to other considerations which have not been explored at this stage, including potentially under the Human Rights Act 2019 (Qld).
 I note in this regard that until the issue of capacity is determined, Legal Aid would not be able to act on behalf of the respondent as their retainer terminates on “insanity”.
- Published Case Name:
Attorney-General for the State of Queensland v SLS
- Shortened Case Name:
Attorney-General v SLS
 QSC 111
24 May 2021
- Selected for Reporting: