Attorney-General v ZBA[2023] QSC 131

SUPREME COURT OF QUEENSLAND

1. [1]
   On 31 January 2020, a continuing detention order was made in respect of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act).^[1]
2. [2]
   On 26 November 2021, upon the first annual review of that continuing detention order, the decision that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the DPSO Act was affirmed and it was ordered that the respondent continue to be subject to the continuing detention order.
3. [3]
   On 24 November 2022, the Attorney-General for the State of Queensland (the applicant) applied, pursuant to s 27(2) of the DPSO Act, for the court to review the continuing detention order.  This would be the second annual review of the continuing detention order.
4. [4]
   The second annual review has not yet been heard.  The reason is that an issue has arisen as to whether the respondent is a person with “impaired capacity”. 
5. [5]
   When the matter came on for hearing before me on 13 June 2023, the applicant submitted that, on the clinical evidence obtained in preparing for the second annual review (addressed below), the respondent satisfies the statutory definition of being a “person with impaired capacity” and sought orders referring the question whether a guardian should be appointed under the Guardianship and Administration Act 2000 (Qld) (GAA Act) for consideration by the Queensland Civil and Administrative Tribunal (QCAT).
6. [6]
   Ms Smith of counsel and Legal Aid Queensland have been unable to obtain instructions from the respondent in relation to the matter.  In the circumstances it was appropriate that Ms Smith made submissions as amicus curiae.  In that position, Ms Smith did not oppose the orders sought by the applicant.
7. [7]
   The respondent was present for the hearing via video link.
8. [8]
   On the basis of the evidence set out in various clinical reports, as well as the oral evidence of two psychiatrists, Dr Harden and Dr Arthur, I was satisfied that I should make the orders sought by the applicant.  I made those orders at the conclusion of the hearing on 13 June 2023 and indicated that I would deliver my reasons for making those orders later.  These are my reasons for making the orders.

Relevant legislation and principles

9. [9]
   The issue which has emerged requires consideration of:

   1. (a)
      r 72 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which is engaged in circumstances where a party to a civil proceeding (which includes proceedings under the DPSO Act) becomes a person with impaired capacity.  The term “person with impaired capacity” is defined in Sch 5 to the Supreme Court Act 1991 (Qld) to mean, relevantly “a person who is not capable of making the decisions required of a litigant for conducting proceedings”;
   2. (b)
      rr 93, 94 and 95 of the UCPR, which deal with the appointment of a litigation guardian of a person under a legal incapacity; and
   3. (c)
      the statutory scheme established by the GAA Act concerning the appointment of guardians to manage the personal and financial affairs of adults with impaired capacity.
10. [10]
    In Attorney-General for the State of Queensland v SLS,^[2] Williams J carefully analysed the relevant provisions and the issues which arise for consideration in circumstances such as these.  It is not necessary for me to repeat that discussion.  I adopt the principles identified by Williams J and have applied those principles to the facts relevant to the respondent in this proceeding.

Is the respondent a person with impaired capacity?

11. [11]
    In determining whether the respondent is a person with impaired capacity for the purposes of r 72, I proceed on the following basis identified by Williams J:^[3]

“… 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.

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.

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. (i)
   identification of, and procurement if needed, of accommodation and rehabilitation and treatment programs;
2. (ii)
   identification of, and procurement if needed, of support services (eg through NDIS);

1. (h)
   compliance with any requirement of a supervision order;
2. (i)
   what submissions to make;
3. (j)
   prospects for a potential appeal, and whether to initiate or defend an appeal; and
4. (k)
   if subject to a continuing detention order, whether an application to the Supreme Court for leave to initiate a review should be made.”

12. [12]
    As part of the respondent’s care and management in custody, and in preparation for the second annual review, the respondent was assessed by:

1. (a)
   Dr Adina Piovesana, psychologist;
2. (b)
   Dr Kieran Broome, occupational therapist;
3. (c)
   Dr Scott Harden, psychiatrist; and
4. (d)
   Dr Ken Arthur, psychiatrist.

12. [13]
    Dr Piovesana interviewed the respondent in person over a period of two days and performed psychological tests for the purpose of assessing his intellectual functioning.  The result of that assessment was expressed as follows:

“In order to assess [the respondent’s] current overall level of intellectual ability, he was administered the WAIS-IV. As measured by this test, [the respondent’s] estimated level of intellectual functioning presently falls consistently within the Extremely Low range (WAIS-IV Full Scale IQ = 63, 1^st percentile: General Ability Index = 68, 2^nd percentile).  All of [the respondent’s] WAIS-IV Composite Scores fall within the Extremely Low to Very Low ranges (VCI = 61, <1^st percentile; WMI = 58, <1^st percentile; PSI = 74, 4^th percentile; PRI = 79, 8^th percentile).

Based on his age, years of education (note: 9 years of education but reports of learning difficulties, reading level assessed to be equivalent to Grade 4 level) and history of unemployment in adulthood, [the respondent’s] overall intellectual abilities were predicted to fall in the Very Low range (TOPF predicted WAIS-IV FSIQ = 70, 2^nd percentile) consistent with a developmental delay (PPVT5 = 73, 4^th percentile). [The respondent’s] actual cognitive abilities (FSIQ = 63) are therefore lower than expected but not unusually so (7-point difference occurring in 30 percent of the population).

[The respondent’s] visual and processing speed abilities are at the expected level. [The respondent’s] verbal abilities are significantly lower than expected, but not unusually so, consistent with likely pre-existing language/reading delays (VCI

14. [14]
    Dr Piovesana summarised her assessment of the respondent:

[The respondent’s] overall level of intellectual functioning fell within the Extremely Low range. While his abilities are exceeded by 99 percent of the general population, he is performing at the level expected for someone who has a history of poor educational attainment/performance and limited employment history.  [The respondent’s] overall verbal and attentional abilities fell within the Extremely Low range while his speeded capabilities and visual abilities fell within the Very Low range. His visual abilities are at the expected level. His capacity to attend and concentrate on verbal information is considered significantly and abnormally lower than expected. His verbal abilities are significantly lower but not considered clinically unusual. Although he performed within the Very Low to Extremely Low ranges with respect to his word knowledge, receptive and expressive language, and verbal comprehension skills, these are most likely lifelong in nature and indicative of his developmental delay and intellectual insufficiency in the language area. [The respondent’s] capacity to read and comprehend language is estimated at a Grade 4 level. [The respondent’s] memory and executive functioning were unable to be assessed during the current assessment. No further comments can be made regarding his cognitive functioning at this time.”

15. [15]
    Dr Broome assessed the respondent in person over approximately two hours.  Based on the assessments he conducted, Dr Broome formed the following opinions:

“[The respondent] demonstrates cognitive impairment that impact on his ability to function in daily activities.

…

While he would be likely to be independent in simple daily activities (such as undertaking an established cleaning routine or preparing a basic snack) he is likely to require assistance with more complex tasks requiring planning.  These include, but are not limited to, budgeting, weekly shopping, irregular cleaning tasks (e.g., remembering to take bins out without prompting, cleaning windows), paying bills, arranging transportation, catching public transport, travelling to unfamiliar places, attending and responding to new health concerns, or responding adequately to new situations that arise (e.g., sickness, changes in processes).  These limitations reflect his cognitive capacities.

…

He has very limited ability to plan for the future or independently adapt to change.  He would require a high level of support in managing his accommodation and financial affairs, and making decisions around his future.

…

Given his strong emotional reaction to discussion around prison-based rehabilitation programs, the primary barrier to his participation in these programs is likely to be emotional.  However, due to his cognitive level, he is unlikely to have sufficient planning ability to weigh medium term emotional pain of program participation against an abstract concept of release.

[The respondent] has difficulty processing and interpreting information that he receives.  He also demonstrates difficulties with planning.  If completing a rehabilitation program, he would not be able to independently set goals, and would require assistance.  It is likely that he would experience little benefit from a group-based program.  Given difficulties with processing narrative stories, he is unlikely to achieve vicarious learning from others to a significant degree. …

Given indications of cognitive impairment, application to the NDIS may be warranted.”

16. [16]
    Both Dr Arthur and Dr Harden diagnosed the respondent as suffering from Paedophilia (non-exclusive, attracted to males and females), Antisocial Personality Disorder, Alcohol Misuse Disorder (in remission due to incarceration) and Intellectual Impairment.
17. [17]
    On the question of the respondent’s capacity, Dr Harden expressed the following opinion:^[4]

“Opinion on Ability to engage as a litigant

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

Considering whether to initiate or defend an appeal.

Based on my interview in 2019 which did not address [sic] directly address the question/s but provided general illumination of his level of cognitive function and engagement and the now available formal testing it is my opinion that he is not capable of making decisions regarding any of the above listed functions. As I understand it he is therefore a person of impaired capacity in this regard or a person under a legal incapacity.”

18. [18]
    Dr Arthur addressed those questions as follows:

“SUMMARY

2. 10.It is difficult to form a firm opinion on the matters in question for the following reasons –

1. (a)
   [The respondent] has not complied with risk assessments and as such, I have not had the opportunity to perform a clinical assessment of his cognition, understanding of the DP(SO)A process/legislation or his capacity to comply with a supervision order.
2. (b)
   Whilst [the respondent] did cooperate with the neuropsychological assessment earlier this year, this was incomplete and at that time no formal assessment of capacity was made.
3. (c)
   Based on the IOMS documentation, it is difficult to determine whether [the respondent’s] non-cooperation reflects his lack of understanding of the processes or alternatively a conscious decision not to cooperate with the assessment process due to his anti-system attitudes and ambivalence.

2. 11.However, on review of the material I would note the following –

• When I attempted to assess him in 2021 he had refused to engage and expressed mistrust regarding the DP(SO)A process. At that time he had been periodically non-compliant with medical management, the reasons for which were unclear which may have indicated impaired judgement or lack of appreciation for the need for such treatment.
• Whilst [the respondent] indicated that he expected to remain in jail until he died, it was not clear whether this was his choice or that he simply did not understand the DP(SO)A legislation and what was expected of him.
• When he refused to comply with an assessment in September 2022, I was informed that he had complained about being asked too many questions, which distressed him. At that time he was indifferent to being released from jail.
• Despite suffering from numerous medical comorbidities, he continued to intermittently refuse to attend specialist medical appointments.
• I was unable to comment on whether his mistrust, lack of cooperation was based on poor comprehension or rather an expression of his anti-system/antiauthoritarian attitudes. I was concerned that if released to the community there would be a significant risk of non-compliance. At that time I recommended a formal assessment of his intellectual capacities in relation to receptive and expressive language skills, comprehension and memory, without which I was unable to formulate a meaningful relapse prevention plan.
• When assessed by Dr Kieran Broome in February 2023 screening tests identified problems with mathematical tasks related to money and slow cognitive processing speed. It was opined that [the respondent] had limited awareness of his impairments and would require proactive support as he was unlikely to recognise the need for help or to ask for it.
• When assessed by Dr Piovesana in February 2023 he was disinterested in legal matters and could not tell her the name of his lawyer. She estimated his full scale IQ to be 63, in the extremely low range. There were significant impairments in verbal and attentional abilities, processing speed and in his capacity to concentrate on verbal information. His ability to read and comprehend language was at a grade 4 level. Unfortunately, his memory and executive functioning were unable to be assessed.
• He has refused to attend a diabetic clinic and been dismissive of the need for treatment. It appears that he was diagnosed with a bladder carcinoma in 2013 but declined treatment.

2. 12.The above information suggests the presence of significant cognitive impairment. Whilst [the respondent] does have a number of medical conditions which could potentially impact on his cognition, it is more likely than not that his impairment is permanent but he may experience further deterioration in functioning as a consequence of poor physical health. He appears to have limited insight into his impairment such that he is unlikely to seek out or accept help.
3. 13.The cognitive issues identified, particularly those relating to verbal and attentional abilities, are relevant to the question of legal capacity.

OPINION ON CAPACITY

General issues

2. 14.There is no evidence to suggest that [the respondent] does not have the capacity to freely and voluntarily make decisions in relation to the proceedings. However, there is a question as to his capacity to make rational decisions, given the uncertainty around his comprehension of the relevant matters and his level of insight in regard to his own cognitive limitations. He has not always made rational decisions about his health care.

Whether to engage a lawyer

2. 15.It is not clear whether [the respondent] has the capacity to make a decision on this matter. He was legally represented in two previous hearings. His reported lack of interest in legal proceedings does not necessarily reflect a lack of capacity in this regard.

Whether to present evidence and the type of evidence to be presented

2. 16.I have insufficient information to form a conclusion on this question.

Whether to cross-examine witnesses and what questions to ask in cross-examination

2. 17.Given concerns around his comprehension of DP(SO)A matters, the concept of risk and the ‘real issues’ around the need for risk management and for cooperation with supervision, it is likely that his capacity to make rational decisions about this matter is impaired.

What submissions to make

2. 18.I have insufficient evidence to form a clear opinion on this matter. However, I noted in previous reports that it is questionable whether [the respondent] comprehends the risk assessment process or appreciates his level of risk. As such, on the balance of probabilities I think that his capacity to make rational decisions on this matter is impaired.

Considering whether to initiate or defend an appeal

2. 19.Given concerns around his comprehension of the ‘real issues’ around the need for risk management and for cooperation with supervision, it is likely that his capacity to make a rational decision about this is impaired.”

19. [19]
    Dr Harden gave the following further oral evidence:

    1. (a)
       a person with the respondent’s IQ score of 63 is likely to have significant impairment in his ability to do more complex cognitive activities and to struggle with complex decisions;^[5]
    2. (b)
       the respondent’s intellectual disability is accompanied by speech and language which is worse than his overall intellectual disability;^[6]
    3. (c)
       the respondent’s impairment is affected by elements of culture and personality factors – such as shame, avoidance of communication about difficult topics and a tendency to withdraw when faced with difficult situations or questions – but the majority of that impairment is related to his cognitive disability;^[7]
    4. (d)
       a requirement to consider expert evidence and make decisions based on that evidence would come within the category of complex decision which the respondent lacks the capacity to undertake.^[8]
20. [20]
    Dr Arthur also gave oral evidence as follows:

    1. (a)
       the respondent’s attentional difficulties, verbal difficulties, verbal memory and processing speed – as identified and measured by Dr Piovesana – are very relevant to the question of his capacity;^[9]
    2. (b)
       a person with very poor verbal comprehension, verbal memory, processing speed, attention and concentration is likely to have difficulty taking on board something that is said during evidence in the proceeding, making sense of it and retaining the information.  The respondent’s low level of education and low level of literacy, as well as cultural and personality factors, also impacts his interactions with his legal representatives;^[10]
    3. (c)
       the evidence suggests that the respondent’s ability to make a rational decision – to be able to think about information and the available choices and to make the right decision for him – is impaired and his ability to be able to identify when he is not able to make a rational decision is also impaired;^[11]
    4. (d)
       it would be very difficult for the respondent to have any sort of opinion on what questions in cross-examination of witnesses might be relevant to his interests because the concept of risk raised in the review under the DPSO Act is an abstract concept which is difficult to understand and the evidence suggests that the respondent does not comprehend a lot of what is said to him and may not retain what he does understand;^[12] 
    5. (e)
       the choices that the respondent has made suggest that he doesn’t really understand the risk assessment process and what is at stake.^[13]
21. [21]
    Although the respondent was present during the hearing by video link he did not engage in the hearing in any way.  For much of the time he did not appear to have any interest in following what was being said in the courtroom.  Dr Arthur stated in his oral evidence that his observation of the respondent during the course of the hearing was consistent with him having withdrawn for the most part from the risk assessment process.^[14]
22. [22]
    I accept the evidence set out above and, on the basis of that evidence, I am satisfied that the respondent has a degree of impaired capacity that is sufficient to engage r 72 of the UCPR.
23. [23]
    The question then becomes how the second annual review should proceed in light of this conclusion.

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

24. [24]
    As Williams J found in Attorney-General for the State of Queensland v SLS, this court has the power to appoint a litigation guardian if a person has impaired capacity.  However, I must also consider whether that is the appropriate course in the present circumstances.
25. [25]
    It was common ground at the hearing that there is no person who is prepared to act as a litigation guardian.  Legal Aid is unable to fulfil that role and the Public Guardian is not prepared to be appointed to that role under r 72.  Nor has any individual been identified who would be prepared to take on the role.
26. [26]
    In any event, a litigation guardian may not be appropriate to be able to deal with all of the personal matters that may arise in this DPSO Act proceeding.
27. [27]
    Dr Harden gave oral evidence that the respondent is significantly impaired with regard to personal matters relating to choice of accommodation, obtaining accommodation, payment of rent, applying to the National Disability Insurance Scheme for funding or managing his finances.^[15]  Dr Arthur gave similar evidence.^[16]
28. [28]
    Decisions about such mattes are relevant to the risk assessment exercise to be undertaken in the DPSO Act proceeding.  The respondent’s interests require that consideration be given to decisions to be made concerning the legal aspects of the proceeding, but also the wider issues that might be relevant to mitigation of the risk if the respondent were to be released from custody.
29. [29]
    For these reasons, I did not consider the appointment by the court of a litigation guardian under the UCPR to be appropriate in the circumstances of this proceeding.

Referral of issue of capacity to QCAT

30. [30]
    As Williams J found in Attorney-General for the State of Queensland v SLS:

    1. (a)
       consideration by QCAT of the appropriateness of a declaration as to capacity and an appointment of a guardian in circumstances such as these is an option which is consistent with the objects and purposes of the GAA Act and the powers and functions of QCAT under that legislation;
    2. (b)
       this court has power to refer the question of the respondent’s capacity to respond to the DPSO Act proceeding to QCAT.
31. [31]
    During the course of the hearing the applicant referred to the fact that no one had been able to find out from the respondent whether or not he would want a guardian appointed.  Ms Smith advised that the respondent had been asked directly whether or not he would consent to the referral to QCAT but he had not provided a response to that question.
32. [32]
    In the circumstances I was satisfied that it is appropriate, and in the respondent’s best interests, to exercise the power to refer the question of the respondent’s capacity to respond to the DPSO Act proceeding to QCAT to be determined in accordance with the GAA Act.
33. [33]
    In addition to making that order, I directed that the Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following relevant material:

    1. (a)
       a copy of these reasons;
    2. (b)
       a copy of the transcript from the hearing on 13 June 2023; and
    3. (c)
       a copy of the following documents from Supreme Court file BS No 10345 of 2019:

1. (i)
   Affidavit of Amanda McLean filed 17 November 2021;^[17]
2. (ii)
   Affidavit of Kenneth Arthur filed 13 January 2023;^[18]
3. (iii)
   Affidavit of Scott Harden filed 18 January 2023;^[19]
4. (iv)
   Affidavit of Nicholas Palmer filed 2 June 2023;^[20] and
5. (v)
   Affidavit of Amanda McLean filed 13 June 2023.^[21]

34. [34]
    I further directed that:

    1. (a)
       the application for the second annual review pursuant to Part 3 of the DPSO Act be listed for review on 17 August 2023 at 9:15 am.
    2. (b)
       the Registrar of the Supreme Court obtain an update from the Registrar of QCAT as to the progress of the referral by 4 pm on 10 August 2023.
35. [35]
    That process is consistent with the approach taken by Williams J in Attorney-General for the State of Queensland v SLS and Attorney-General for the State of Queensland v FPN.  I otherwise adopt what her Honour said in those decisions about the future progress of the hearing of the review application.