Attorney-General v NPG[2024] QSC 22

SUPREME COURT OF QUEENSLAND

This is limited. He is ill informed and subject to irritable rejection of the lawyers on offer. At times he says he will engage a lawyer, at times he won't, but he cannot rationally discuss these issues.

(2) whether to present evidence;

He is unable to inform me of any evidence he might want to present other than that he wishes freedom, that is implied more than stated. He says that he knows that he will wear an electronic monitoring device, that can inform Corrections, and that he can possibly have the assistance offered by possibly having a legislated guardian, his appreciation of how that is to be applied is lacking, and poorly recalled as is the option that he may present evidence.

(3) the type of evidence to be presented;

No.

(4) whether to cross-examine witnesses;

No.

(5) what questions to ask in cross-examination;

No.

(6) what submissions to make;

Minimally he says he will agree to wear electronic monitoring to work in Lifeline or the Salvation Army and possibly attend rehabilitation and comply with directions if he agrees, that agreement varies and is subject to impulsive, ill-considered and irrational change. At times he can show some rational appreciation that is short lived, and inconsistent.

(7) whether to initiate or defend an appeal.

No.

(1) Is [the respondent] capable of making a rational decision about whether he should submit to medical treatment as directed?

His life history is of inconsistent compliance with medical advice and this is consistent with the information he gives me, that he will inconsistently comply with medical advice and probably won't take medicines if he does not think he needs to and cannot volunteer the names of medicines, nor consistently account for his illnesses needing medical attention nor significantly understand or discuss the implications of such decisions. In my opinion he is not capable of making a rational decision about whether he should comply to medical treatment.

(2) Is [the respondent] capable of understanding the nature and effect of a Restrictive Practice Order, both generally and as it may apply to him, if he is released on a Community Supervision Order?

The best I could achieve was his hesitancy about restrictions such as locked doors, i.e. that in the residential section of the prison the doors are not locked and the supervision he wishes is under his authority, i.e. he wants a female to supervise him, that may not be possible. In my opinion he is not capable of understanding the nature and effect of Restricted Practice Orders or alternatively if he does understand, he cannot guarantee to adhere to them and is more likely than not to rebel against them.

(3) Is [the respondent] capable of freely and voluntarily making decisions about whether to consent to a Restrictive Practice Order, both generally and as it may apply to him, if he is released on a Community Supervision Order?

Again, it is very difficult to discuss with [the respondent] in any rational and reasoned way the type of restrictions that might apply. His answers change from compliance with the idea that they may be applied, to angry resistance to the enforced monitoring of closed doors and windows at night, supervised by male staff. I do not think he can freely and voluntarily make such decisions.”^[10]

26. [26]
    Dr Brown in her supplementary report dated 12 September 2023 provided an opinion including as follows:

“Section B: Interview With [the respondent], 31st August 2023

Presentation

“[The respondent] was interviewed in person in Wolston Correctional Centre. He presented in prison attire, with an outgrown short hair cut. He was missing some of his front teeth. As per previous interviews, he was irritable and agitated at the start of the interview due to the change in routine and disruption to his usual activities. He calmed once the assessment had started and he engaged reasonably well, although he remained mildly agitated and overfamiliar. He had a rather intense stare at times and he lacked non-verbal reciprocity. His speech was loud (possibly due to a hearing defect) and mildly slowed. His mood was euthymic, reactive and mildly elevated at times. There were no neurovegetative changes. He was not suicidal and he did not report violent ideation. His thoughts were circumstantial and tangential at times, requiring prompts to stay on topic. He did not present with psychotic symptoms. He confirmed that he was working as a landscape gardener and that he enjoyed his work. He kept a fairly fixed routine; work, followed by a shower, TV and sleep.

Legal matters

When asked about the current stage of his legal matters, [the respondent] said, ‘I don’t know anything…I’ll want someone to keep an eye on me…help me with money….I don’t want the public trust.’ When asked again he said, ‘you tell me?’ He was aware that he was subject to some type of Court order and therefore detained in prison, but he could not further explain the details (ie that he was on a Continuing Detention Order under the DPSOA). When I informed him of same he appeared surprised and stated, ‘I am not a dangerous prisoner.’ [the respondent] was more aware of the potential for release to a supervision order (presumably because this had been repeatedly discussed with him) and that he would have to abide by the conditions of such an order. He was aware that if he did not, he could be returned to prison.

When asked about the legal system more generally, [the respondent] stated that he was aware of ‘legal aid’ but he was unable to explain the role of legal aid other than to advise that he found them to be unhelpful. He said that a judge ‘makes the ruling.’ He could not explain the role of a jury. He had no awareness or appreciation of the roles of (and differences between) prosecution and defence lawyers.

[The respondent] was able to explain the meaning of the word guilty and not guilty and he contextualised the word ‘evidence’ as ‘you look for evidence of a crime.’ He was not able to give an example of what types of evidence might be presented in a court case (or his court case). He defined a witness as ‘someone to stand up in Court and to be a witness to someone else’s crime.’ He was not aware of other types of witnesses and he could not explain why doctors were involved in his legal matters (or the role of an expert witness). He said that he could not follow proceedings in the Court and he could not explain the process of or reason for examination / cross examination. He was aware that he could appeal a decision made by a Court, but he reported that legal aid did not have the skills to do so.

[The respondent] said that he was visited by a woman (presumably DPSOA case manager) in the prison every fortnight, ‘she tells me what I need to know…but I don’t pay much attention, I can’t remember what she tells me.’

NDIS Plan / Restrictive Practices

[The respondent] was aware of the NDIS plan for him to live in some sort of supported accommodation. However, later in the interview he stated that he would prefer to live in a cabin by himself rather than in shared NDIS accommodation. He also said that he would like to work for the Salvation Army or other charity so as to keep himself occupied.

He did not express any concern about (and was passively agreeable to) the potential for restrictive practice (eg locked windows and doors), but again he had very little insight into his vulnerabilities and risks that would form the basis of an application for same.

Health

[The respondent] could not give any details about what medications were prescribed to him. He said that he took the medications because the prison doctor had told him to do so (ie that the medical advice was in his best interests). He initially said that he would be happy to see a psychologist in the community, but he dismissed the idea that he was a risk of reoffending and he said that he would not accept psychological treatment if he had to pay for it. He denied that he had an active sexual drive or that he wanted a relationship.

Section C: Opinion and Recommendations

Specifically I am asked to address whether [the respondent] has capacity to make informed and rational decisions with respect to:

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;

Whether to initiate or defend an appeal; And:

Is [the respondent] capable of making a rational decision about whether he should submit to medical treatment as directed;

Is [the respondent] capable of understanding the nature and effect of a Restrictive Practice order, both generally and as it may apply to him if he is released on a supervision order?

Is [the respondent] capable of freely and voluntarily making decisions about whether to consent to a Restrictive Practice order, both generally and as it may apply to him if he is released on supervision?

In response to questions 1-7 inclusive:

In my opinion [the respondent] has a very basic understanding of the role of a lawyer (as an advocate for him in Court) and he is aware of the process of engaging a lawyer in respect of his legal matters. However his capacity to instruct a lawyer is limited due to his difficulties understanding court processes and the reasons for his current detention. [The respondent] has circumstantial and tangential thought processes and his ability to stay on topic is limited. His memory and processing speed is also poor. His ability to follow proceedings (even in a basic sense) will therefore be compromised. He will be unable to properly understand, process and appropriately respond to more complex material and/ or evidence given against him.

[the respondent] had a very basic understanding of the meaning of the word ‘evidence’ but he did not have an appreciation of the different types of evidence that could be presented in court or the associated consequences. He did not understand the role of a psychiatrist as expert witnesses in his case, or the reasons for examination and cross examination.

[The respondent] could only explain his legal situation in very basic terms and he had very little insight into his risk of reoffending. He would not be able to generate logical questions for examination / cross examination or submissions. He was aware of his right to appeal, but he lacked an understanding of how that might be achieved. He appeared to passively accept his situation (in part I think due to his level of institutionalisation), but he had very little comprehension of how he might go about challenging or changing it. He was confused about the various professionals involved in his case (for example he was not sure of the reason for the fortnightly visits from his case manager) and he admitted that he usually forgot the information provided to him.

In response to questions 8-10 inclusive:

In relation the possibility of restrictive practices, [the respondent] stated he was agreeable, but without proper understanding of the associated risks and benefits. It was my impression that his stated agreement stemmed from a wish to be released from prison, rather than representing a capacitous decision. Regarding a Restrictive Practices Order, I was not convinced that [the respondent] would longitudinally consent (or indeed remember the reasons for the order).

[The respondent] is generally compliant with his medication in prison, although he had only a limited understanding of his medication regime. He may have capacity to consent to basic health decisions, but he would need assistance with more complex decision making.

Overall it is my opinion that [the respondent] does not have the capacity to make informed and rational decisions with regards to questions 1-10 inclusive and that a referral should be made to the Queensland Civil and Administrative Tribunal for consideration regarding the appointment of a Guardian for health, personal, legal and financial matters.”^[11]

27. [27]
    Dr Brown’s and Dr Moyle’s further oral evidence at the hearing was consistent with the opinions expressed in their reports and provides further guidance on the respondent’s individual characteristics and the impact on his capacity.

28. [28]
    At the hearing on 19 February 2024, Dr Brown gave oral evidence including as follows:

    1. “the intellectual disability [is] the main problem here”,^[12] as opposed to the respondent’s diagnosis of psychopathy.
    2. The respondent has “an IQ of 57, which places him in the mild intellectual disability range, but he also has a number of deficits as picked up by the occupational therapists”.^[13]
    3. The respondent “has problems with … his working memory. So it’s hard for him to retain information and then use that information appropriately, including areas such as supervision conditions, respond to treatment. He has problems with his processing speed, which means it takes him longer than the average person to take on board information, manipulate it cognitively and then deal with it. He also has problems with executive function, which broadly means abstract problem solving".^[14]
    4. The respondent “doesn’t understand, really, other than the court has put him in prison, why he is in prison. He doesn’t understand why he needs to be released on a supervision order because he doesn’t really see his offending as that serious and he doesn’t relate a supervision order back to management of his own risk”.^[15]
    5. The respondent “has trouble understanding and remembering what the legal issues are in relation to his offending and in relation to risk and the DPSOA, for all the reasons I’ve already articulated. So then to be able to give meaningful instructions in relation to these matters … he is highly compromised.”^[16]
    6. Dr Brown’s clinical view on the adequacy of the NDIS package was that it is “not sufficient at night for the management of risk to self and others, but mostly risk to others”.^[17]
    7. In respect of the matters that QCAT should consider on any referral, Dr Brown considers that “all matters that are available to be considered should be considered. So that would include health, legal matters and … living arrangements… all areas of community living and decisions associated with that.”^[18]
29. [29]
    At the hearing on 19 February 2024, Dr Moyle gave oral evidence including as follows:

    1. The respondent is “suffering from both …. a borderline intellectual disability from birth and a developed… a neurocognitive disorder on top of that that has lowered his intellectual ability. So he now functions as a mild, heading towards the moderate range of intellectual disability.”^[19]

2. Further, in respect of the respondent’s epilepsy the “obvious clinical implication is he’s more likely to have seizures and, therefore, more likely to suffer brain injury from the seizures.”^[20]
3. The respondent’s capacity to make decisions and undertake judgments is affected by the injuries to his temporal lobes. As a result, his decisions and judgment making is “unreliable”.^[21] The judgments are made “at the moment” and also “depend on how he’s feeling”.^[22]
4. The question of the respondent’s needs in the community is “highly complex” and the respondent “won’t be able to analyse all [the] factors.”^[23] The respondent is “unable to support himself, even simple tasks as making sure he cooks food correctly without getting ill, so he can’t look after his self-care needs. He can’t make decisions rationally about his medication compliance because he might not agree with it and, therefore, will disagree with it, without being able to analyse all of the implications, positive and negative, of doing so. As far as behaviours go, if he got an urge to do something, he won’t necessarily weigh up all the pros and cons, the moral reasoning, and all of that, about that, so he might do something that’s disinhibited or impulsive, or the like, and his decisions are likely to be reasonably impulsive, but more importantly inconsistent. What he decides at one moment in time might not be what he decided 10 minutes later, let alone an hour later.”^[24]
5. Further, “as far as risk to the community goes, he needs somebody that can guide his moral decision making and prevent his egress if he’s going to sneak out and … in some sort of planned way… to get out into the community where he doesn’t have the capacity to look after all of his needs and where … you can’t rely on him not to reoffend sexually”.^[25]
6. It is “very” important for the NDIS to consider active supervision of the respondent overnight.^[26]
7. The respondent has “very little idea of what supervision might mean”.^[27]
8. For the respondent to be in the community, Dr Moyle considers that it would require “a home … with the NDIS support and a package that includes the capacity with a positive behavioural management plan, including restrictive practices, he could live in an ordinary house with all the niceties of living at home. He would have available to him somebody who could both ensure that he gets his meals, that he gets his medicines, that he ... has advice... to direct him as to whether … to go out. He would have available to him access to the community which he can’t have in jail. So, NDIS support workers might be able to take him fishing or doing… some safe activities while he’s accompanied by a male person that he can’t do from jail. And his quality of life could improve considerably. And at the same time, his decision making on moral grounds could be guided and … if necessary, overseen and … restricted”.^[28]

9. The respondent “couldn’t give informed consent” in relation to medical issues.^[29]
10. The respondent “can’t manage finances”.^[30]
11. Dr Moyle considers that based on his intellectual capacity the respondent is not able to make decisions that a litigant needs to make in relation to legal proceedings. He does not have the “capacity to instruct a lawyer about a lot of areas of his life”.^[31]
12. In relation to what matters the respondent needs by way of a substituted decision-maker, “he needs guardianship for a widespread a range of aspects that guardianship can be provided”.^[32]

30. [30]
    Further, the supplementary report of Dr Luke Hatzipetrou dated 19 February 2024 is also of assistance and is consistent with the concerns as to the respondent’s capacity identified in the reports of Dr Brown and Dr Moyle.
31. [31]
    In the circumstances, I accept the clinical evidence^[33] and I am satisfied on the evidence that the respondent has an impaired capacity for the purpose of rule 72 UCPR.

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

32. [32]
    The Court has power to appoint a litigation guardian, but it is necessary to consider whether that is appropriate in the particular circumstances.
33. [33]
    The respondent has a mild intellectual disability, and his capacity is impaired in respect of legal, personal, accommodation and service provision decisions. Given the nature of proceedings under the DPSO Act, decisions of this nature are highly relevant and may have significant potential impacts on the liberty of the respondent.
34. [34]
    In respect of the respondent, taking into account the evidence as to his incapacity and the need to consider legal matters as well as personal matters (including accommodation and service provision matters), it is not appropriate to appoint a litigation guardian by order of the Court pursuant to the UCPR.^[34]

Should the issue of the respondent’s capacity be referred to QCAT?

35. [35]
    As discussed in Attorney-General for the State of Queensland v SLS:

1. Where the issue of capacity has arisen, this Court should take steps to ensure that the interests of the person with impaired capacity are adequately protected. This is also consistent with the issues to be considered by QCAT under s 12 GA Act.
2. Parliament has given QCAT the exclusive jurisdiction to consider and determine capacity and to appoint a guardian or administrator if necessary.
3. Where impaired capacity is identified on a preliminary basis, the issue should be referred to QCAT to consider and determine capacity in accordance with the functions and powers in the GA Act.

36. [36]
    This Court only needs to be satisfied of impaired capacity as a threshold issue to make a referral and then QCAT is to undertake the necessary investigations and make a declaration and/or appoint a guardian or administrator with such conditions as necessary given the findings in respect of the respondent’s capacity.
37. [37]
    In the current case there is more than sufficient evidence to be satisfied that it is appropriate to exercise the power to refer the question of the respondent’s capacity to respond to DPSO Act proceedings to QCAT to determine the respondent’s capacity in accordance with the GA Act.
38. [38]
    Further, it appropriate to make similar orders to the orders made in Attorney-General for the State of Queensland v SLS and Attorney-General for the State of Queensland v FPN.
39. [39]
    Whilst this is the third annual review and there is no prescribed time as to when it needs to be completed by, it is still appropriate that:

    1. QCAT deal with the referral as expeditiously as possible; and
    2. the Registrar of the Supreme Court obtain an update from the Registrar of QCAT as to the progress of the matter.
40. [40]
    The provision of this update enables the matter to be relisted for review in the Supreme Court if the referral is not dealt with within a reasonable time.
41. [41]
    I consider it appropriate to make some further comments about the issues which arise in the current case which may assist further in the consideration of the respondent’s relevant capacity in respect of legal and personal matters:

    1. Whilst proceedings under the DPSO Act are civil, they are more complicated in nature than “ordinary” civil proceedings.
    2. The particular characteristics and circumstances of the respondent make this matter even more complex than usual. The current matter gives rise to the interaction between various factors including:

1. A respondent with an intellectual disability that is not likely to improve^[35] and there is a possibility that the respondent’s capacity may deteriorate further.^[36]
2. The identification of risks to both the respondent and the community that flow from the respondent’s intellectual disability.
3. The clinical evidence in the DPSO Act proceedings suggests that the only potential for supervised release from detention involves the application of a dual system of confinement, namely supervision under the DPSO Act and “Restrictive Practices” under the Disability Services Act 2006 (Qld).
4. Provision of services under the NDIS is an essential consideration and there is a potential need for services in addition to the currently approved “package” to meet the identified risks:^[37]

1. to the safety of the respondent; and
2. the risks to the safety of the community under the DPSO Act.

42. [42]
    The first step in the process is for the respondent’s capacity to be considered and, if appropriate, a guardian and/or administrator appointed. The Court proceedings can then continue. If it becomes necessary at a later stage, further consideration may be given to “Restrictive Practices” under the Disability Services Act 2006 (Qld). There is no need for that step to be determined at this stage, other than in relation to whether the respondent has capacity to understand and make rational decisions in respect of the possibility of such measures being required.
43. [43]
    The intersection of these complex issues is concerning where the respondent clearly does not have the capacity to make rational decisions about a number of fundamental matters relevant to the third annual review under the DPSO Act and his liberty is in issue.
44. [44]
    The impaired capacity of the respondent gives rise to issues of his legal representatives being able to act, or continuing to act, on his behalf in these and any other proceedings. Ethical considerations may constrain the ability of lawyers and Counsel to protect the interests of the respondent without a guardian being appointed in respect of legal matters.
45. [45]
    It is essential that the respondent’s capacity be carefully and properly considered in this context, with particular attention to personal, accommodation, provision of services (NDIS) and legal matters.
46. [46]
    Consideration of the full transcript of the oral evidence of Dr Brown and Dr Moyle (in addition to the written reports) may be particularly helpful to QCAT as the various aspects and implications of the respondent’s impaired capacity were explored.