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The respondent was the subject of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The applicant made an application under s 27(2) for the first annual review of that order. Prior to considering that application, it was determined that the respondent did not have capacity to make the decisions required to conduct the review of his continuing detention order. Ultimately, Williams J held that it was appropriate to refer the question of the respondent’s capacity to respond to the application to the Queensland Civil and Administration Tribunal for determination.
24 May 2021
The respondent was the subject of a continuing detention order (“CDO”) under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSO Act”). The applicant made an application pursuant to s 27(2) of the DPSO Act for the first annual review of the CDO. .
There were two key issues before the Court:
(i) did the respondent have capacity to make the decisions required to conduct the review of his CDO; and
(ii) if not, what was the appropriate way to proceed with the application for review of the CDO. , .
The respondent did not have capacity to make the necessary decisions
The Court observed that an application under a DPSO Act is more complex than an “ordinary” civil proceeding. . It requires the respondent to be able to engage with questions of risk, strategies to mitigate risks and compliance with requirements to mitigate the risk. .
The respondent suffers from paranoid schizophrenia and presents with prominent persecutory delusions. The respondent is on a treatment authority by the High Security Inpatient Unit. .
Ultimately, following a review of the evidence contained in the psychiatric reports and the oral evidence of the respondent’s treating doctor, Williams J held that the respondent had impaired capacity. .
Rule 72 of the Uniform Civil Procedure Rules 1999
The Court’s finding that the respondent had impaired capacity triggers r 72 Uniform Civil Procedure Rules 1999 (“UCPR”). , .
Rule 72 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 contemplates the appointment of a litigation guardian. . Justice Williams however considered that there were a number of factors that supported the conclusion that the appointment of a litigation guardian by the Court pursuant to the UCPR provisions was not appropriate, including:
(a) the nature of the DSPO Act proceedings; and
(b) factors beyond the mere conduct of the litigation are relevant to the proceedings, e.g. arranging suitable accommodation. , .
Parens patriae jurisdiction
Following a detailed examination of the Court’s parens patriae jurisdiction, her Honour held that the appropriate course of action was to refer the issue of the respondent’s capacity to respond to the application for review to the Queensland Civil and Administrative Tribunal (“QCAT”) for determination. .
Given that the parens patriae jurisdiction is to be exercised cautiously, her Honour held that it was appropriate to exhaust all alternative options prior to the exercise of that jurisdiction. .
The legislature has, in the form of the Guardianship and Administration Act 2000 (“GAA Act”), given QCAT the exclusive jurisdiction to consider and determine capacity and to appoint a guardian or administrator if necessary. .
Therefore, 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. .
Her Honour also noted in respect of both a declaration about capacity and the appointment of a guardian and/or administrator, pursuant to ss 12(3) and 14(2) of the GAA Act, QCAT may do so on its own initiative or on the application of the individual or “another interested person”. .
Schedule 4 of the GAA defines “interested person” to mean “a person who has a sufficient and genuine concern for the rights and interests of the other person”. .
Justice Williams observed that quite apart from the exercise of its parens patriae jurisdiction, the Court, by its inherent jurisdiction and in accordance with its supervisory function of proceedings before it, may also be an “interested person” under the GAA Act such that it could refer the question of capacity to QCAT. .
A Hughes of Counsel