AZ v Sydney Local Health District

[2022] NSWSC 878

Supreme Court

New South Wales

Medium Neutral Citation:

AZ v Sydney Local Health District [2022] NSWSC 878

Hearing dates:

21 – 23 June 2022

Date of orders:

24 June 2022

Decision date:

01 July 2022

Jurisdiction:

Equity - Duty List

Before:

Richmond J

Decision:

See [18].

Catchwords:

CHILD WELFARE — parens patriae jurisdiction — whether existing orders made on 29 May 2022 should be extended.

Legislation Cited:

Mental Health Act 2007 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Texts Cited:

Lindsay, Justice, “Children: the parens patriae, and supervisory, jurisdiction of the Supreme Court” (Address to the Legal Aid NSW Child Representation Conference, 18 November 2017)

Category:

Principal judgment

Parties:

AZ and BZ (Plaintiffs)
Sydney Local Health District (First Defendant)
Secretary, Department of Communities and Justice (Second Defendant)
CZ (Third Defendant)
Northern Sydney Local Health District (Fourth Defendant)

Representation:

Counsel:
B Tronson and J Pen (Plaintiffs)
C McGorey (First, Second and Fourth Defendants)
C Goodhand (Third Defendant)

Solicitors:
McGirr & Associates (Plaintiffs)
Crown Solicitor’s Office (First, Second and Fourth Defendants)
Legal Aid NSW (Third Defendant)

File Number(s):

2022/155796

Publication restriction:

Nothing which would reveal the identity of the child, her parents or the relevant medical practitioners.

REVISED EX TEMPORE Judgment

1. The background to the commencement of these proceedings can be summarised as follows.

1. The third defendant (CZ) is the daughter of the plaintiffs and will be 17 years old in early July 2022.

2. CZ has diagnoses of Type 1 Diabetes (which has been managed by an endocrine team in a hospital in Sydney), Hashimoto’s Disease (which has been generally well controlled) and McArdle’s Disease.

3. CZ also has a history of severe emotional dysregulation, polysubstance use (methamphetamine, heroin) and complex trauma.

4. CZ has had multiple mental health admissions to the mental health units at two hospitals in Sydney.

5. As at 11 May 2022, an Apprehended Violence Order (AVO) existed against CZ for the protection of CZ’s mother and siblings. This order prohibits CZ residing in the family home.

6. On 11 May 2022, police presented CZ to an emergency department at a hospital in Sydney on an involuntary basis under the Mental Health Act 2007 (NSW).

7. CZ was in crisis at the time of her presentation. She was described as emotionally distressed, erratic, and expressing suicidal thoughts such as jumping from a height or overdose. This admission was in the context of imminent planned entry into a particular residential drug rehabilitation program in New South Wales (DRP) and associated with severe stressors including her involvement in two Court proceedings.

8. On 17 May 2022, CZ was transferred to a mental health facility in Sydney (Hospital) under the Mental Health Act. The Hospital is a secure ward. Access to, and departure from, the Hospital requires use of a swipe card. As CZ was involuntarily admitted and detained under the Mental Health Act, CZ’s consent to her placement within this secured unit was not sought.

9. On 17 May 2022, and again on 25 May 2022, CZ was reviewed by a Child and Adolescent Consultant Psychiatrist at the Hospital and the clinical impression by at least 25 May 2022 was:

1. CZ presents as competent or able to understand advice and recommendations as to medical treatment and to make decisions about her medical care.

2. CZ wished to be discharged from an inpatient setting.

3. CZ likely meets the criteria for personality disorder and severe substance abuse disorder, but there was no evidence of mood disorder or psychosis.

4. CZ remains at chronic high risk of self-harm and suicide acts and while her risks are unpredictable, they are not acutely elevated at present. The risks have potential for poor outcomes as a result of her personality vulnerabilities.

5. Short, crisis-focused admissions may be necessary when CZ presents in acute crisis however long-term inpatient admission is not expected to be therapeutically beneficial for CZ.

6. The recommendation of CZ’s treating team included that it would be beneficial to CZ to participate in a drug and alcohol rehabilitation program to address her polysubstance misuse. Notwithstanding the recommendation CZ had stated to the treating team that she no longer wished to enter a residential drug and alcohol program (e.g. the DRP which she had planned to enter before her presentation on 11 May 2022) and had declined further drug treatment.

10. On 26 May 2022, CZ’s parents were advised by the Hospital that in the opinion of treating clinicians CZ no longer met the criteria for involuntary admission under the Mental Health Act. Principally this was because the clinicians were not satisfied that she met the definition of “mentally ill person” under the Mental Health Act. The parents were advised that CZ could not remain an involuntarily admitted patient for an extended period of time.

11. CZ’s treating clinicians opted to defer CZ’s discharge until 31 May 2022 owing to the concerns of her parents.

2. On 29 May 2022, proceedings were commenced in this Court on the oral application by CZ's parents, AZ and BZ, on behalf of CZ in the parens patriae jurisdiction, and the Court made an order that:

“8. ORDER, subject to further order, that the [First Defendant] by itself, its servants and agents be restrained up to and including 17 June 2022, from discharging the plaintiff from [the Hospital] without the prior leave of the Court or the written consent of the plaintiff and her father and mother”.

3. CZ’s parents subsequently filed a summons seeking an order that, until further order, the Court authorise the confinement of CZ to or, if she leaves the relevant premises, her return to an appropriate facility or such other order as the Court thinks fit.

4. A principal reason for the making of the interlocutory order on 29 May 2022 was that CZ was unable to return to the family home due to the existence of the AVO referred to at paragraph 1(e) above. The interlocutory order made on 29 May 2022 has continued to operate after a number of extensions until today, to enable time for legal representation to be obtained for both the plaintiffs and CZ, for a formal summons to be filed, evidence (including expert evidence) to be filed, and for the final hearing of the plaintiffs’ summons. On 10 June 2022 in a directions hearing, counsel for CZ indicated that at that time CZ consented to remaining in the Hospital. The Court was informed on the first day of the hearing on 21 June 2022 that CZ’s position had changed and she wished to be released from the Hospital.

5. I also note paras 12 to 14 of the statement of agreed facts which indicate what needs to occur, which all parties agree, including CZ, before she can be discharged from the Hospital. CZ's instructions to her counsel yesterday were that, first, she does not consent to remaining under any order of the Court at the Hospital; second, she is prepared to remain as a voluntary patient at the Hospital if a bed were not to become available for her at a refuge; and third, she has every intention of attending the appointment at 11am next Monday at the DRP. I note that the first and third matters (i.e. that she does not consent to remaining at the Hospital under compulsion, and that she has every intention of attending the appointment at the DRP next Monday) are in accordance with the written statement that she made to the Court on 21 June 2022, which is exhibit 3 (see paragraphs 4 and 6). I also note what she says at paragraph 8 of exhibit 3 that it is really important to her that she is not in the Hospital on her 17^th birthday in July 2022.

6. As stated above, in March 2022, the DRP advised CZ that it was prepared to admit her to its rehabilitation facility, and this decision was made immediately after her interview on or around 25 March. It is likely that during the appointment next Monday, should it occur as it is currently anticipated it will, she will know immediately if she is accepted again.

7. The expert medical evidence (which is uncontested) before the Court in this proceeding is to the following effect:

1. There had initially been a marked and sustained improvement in CZ’s mental state following her admission to the Hospital following her withdrawal from substances of abuse, but there have been increasing signs of distress related to her prolonged detention there (expressed through either withdrawal or crying or anger leading to verbal abuse of others, including staff and other patients, and episodic rage, including threats of physical abuse of others, and as recently as 20 June 2022 a return of occasional suicidal thinking).

2. Although CZ suffers from borderline personality disorder which is a mental illness, she no longer fulfils the criteria for detention under the Mental Health Act.

3. CZ has the capacity to make decisions about her life and treatment in her current sober state.

4. Prolonged hospitalisation is not in CZ’s best interests as it is not therapeutically purposeful. Ongoing restrictive care is more likely to promote regression, dependence and negative cycles of reaction against authority and control. Long-stay mental health units are not beneficial for young people with a primary and sole diagnosis of conduct disorder, borderline personality disorder, trauma or substance abuse which are more effectively managed in a community setting. CZ’s ongoing development and adjustment are therefore best supported in community-based treatment.

5. The proposal of CZ’s parents that CZ should be transferred to another mental health facility with capacity to provide care for young people between 12 and 18 years of age who are experiencing severe and unremitting mental illness was not appropriate as CZ does not have a sufficiently serious mental illness to justify such admission. Further her current behavioural deterioration is likely to continue in any situation of long-term hospitalisation including within the Hospital.

6. There are drug and alcohol services that target adolescents with substance abuse, bringing together specialist addiction treatment with an understanding of the adolescent desire for independence and their developmental vulnerabilities, such as the DRP, but there is no involuntary drug and alcohol rehabilitation service for this age group in NSW.

8. This expert evidence indicates that the next step for CZ's treatment and care should be directed at addressing her substance addiction issues, and that the preferable course would be for her to attend the DRP or another suitable program of the same kind. As noted above, the DRP did accept CZ for admission in March but she declined to attend in early May. However, following her recent treatment at the Hospital and the stabilisation of her mental state, she has now indicated a willingness to attend the DRP if she is accepted on Monday.

9. As I indicated, the Court is exercising parens patriae jurisdiction and I gratefully adopt the summary of the relevant principles for invoking that jurisdiction set out in a paper written extrajudicially by Justice Lindsay, “Children: the parens patriae, and supervisory, jurisdiction of the Supreme Court” (Address to the Legal Aid NSW Child Representation Conference, 18 November 2017) at [94]. I emphasise in particular the following paragraphs of that summary:

“1. The jurisdiction exists for the purpose of taking care of those who are not able to take care of themselves: Marion’s Case (1992) 175 CLR 218 at 258; Re Eve [1986] 2 SCR 388 at 425-426; (1986) 31 DLR (4th) 1 at 28.

2. The jurisdiction extends to protection of any individual who (by reason of age or infirmity) is incapable of self-management and (a) whose person or property is within the territorial jurisdiction of the Court; or (b) who is a citizen of Australia; or (c) who has been abducted from Australia: M Davies, AS Bell and PLG Brereton (eds), Nygh’s Conflict of Laws in Australia (Lexis Nexis, Australia, 9th ed, 2014), paragraphs [28.10]-[28.21] and [31.1]; Young Croft and Smith, On Equity, paragraph [4.220].

…

6. The jurisdiction is not a “consent jurisdiction”. Orders of the Court are not made merely because a party, or some other person, seeks it, consents to it or acquiesces in it. The Court is bound to exercise an independent judgement because of the public interest element in the decision to be made and the possibility, if not the fact, that the person in need of protection lacks the mental capacity requisite to informed decision-making: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [35](a).

7. Care needs to be taken, in all decision-making affecting a person in need of protection, to focus on the facts of the particular case, preferably with due consultation with the affected person, his or her family and carers who may be well placed to inform the Court of his or her particular circumstances: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [35](d).

…

10. The categories of case in which the jurisdiction can be exercised are not closed. The jurisdiction is of a very broad nature. It can be invoked in such matters as custody (parental responsibility), protection of property, health problems, religious upbringing and protection against harmful associations: Re Eve [1986] 2 SCR 388 at 426, 427 and 437-438; (1986) 31 DLR (4th) 1 at 28, 28-29 and 36-37.

11. The jurisdiction must be exercised in accordance with its informing principle; namely, to do what is necessary for the benefit, and in the interests, of the person in need of protection: Re Eve [1986] 2 SCR 388 at 414 and 427; (1986) 31 DLR (4th) 1 at 19.

12. The jurisdiction is to be exercised for the benefit of that person, not for the benefit, or convenience, of others or the state; the welfare and interests of the person in need of protection are the paramount consideration: Re Eve [1986] 2 SCR 388 at 427, 429-430 and 434; (1986) 31 DLR (4th) 1 at 29, 31 and 34.

13. What is done, or not done, upon an exercise of protective jurisdiction is to be measured against what is for the benefit, and in the interests, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G242A; GAU v GAV [2016] 1 Qd R 1 at 25 [48].

14. The protective jurisdiction is parental and protective. It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what that benefit is, and will do on behalf of the person in need of protection not only what may directly benefit him or her, but what, if he or she were fully capable, he or she would as a right minded and honourable person desire to do: H S Theobald, The Law Relating to Lunacy (London, 1924), page 380; Protective Commissioner vD (2004) 60 NSWLR 513 at 540-541.

…

18. The protective jurisdiction extends to the making of a “secured accommodation order”, depriving an infant of his or her liberty in a case in which it is necessary for his or her protection from harm: Director-General, Department of Community Services; Re Thomas [2009] NSWSC 21; (2009) 41 Fam LR 220 (see also [2009] NSWSC 625 and [2010] NSWSC 1525); Re Sally [2009] NSWSC 1141; Re Sally [2011] NSWSC 1696; Re Anita [2015] NSWSC 312”.

10. The principle stated in paragraph 18 guided the making of the order on 29 May 2022, which led to CZ being detained at the Hospital. The issue before the Court now is what is necessary for the benefit and in the interests of CZ in light of what has happened to her previously, what led to her being admitted to the Hospital and what has happened since she has been there.

11. The plaintiffs (CZ’s parents) now seek orders authorising the continued confinement of CZ at the Hospital until she attends the DRP for admission and that she be ordered to attend the DRP for admission.

12. Professor X who is a specialist in the area of child and adolescent mental health services gave evidence addressing those proposed orders. This was to the effect that (a) in her opinion any order for continued confinement of CZ at the MHF would cause difficulties between her and the other patients and staff, putting them at risk, and in addition the interventions that are necessary to deal with CZ’s escalating behaviour become increasingly coercive which has a negative outcome on CZ’s development; (b) coercive orders of the kind proposed would have a negative impact on the prospects of CZ’s engagement with substance abuse treatments because the success of participation in substance abuse rehabilitation is highly based on the individual’s sense that this is something they want for their lives; and (c) CZ is much more likely to comply with the DRP if she were to attend voluntarily the interview with the DRP and to go through the assessment process on a voluntary basis, rather than being coerced into doing so by an order of the Court.

13. Further, Professor X said that in her opinion, CZ has a plan for her own life which includes a vocational interest and a wish to live independently but also the hope that she will be able to re-engage properly with her family and continue to have a relationship with them which may or may not involve physically living with them. Professor X was of the view that CZ’s agreement to voluntary admission to a program such as the DRP is part of that plan. Professor X also said that CZ is likely to regard the orders proposed as unfair, which is likely to induce regressive behaviour and make it less likely that she will comply with the DRP.

14. Another matter I have taken into account is that CZ cannot be discharged to her home due to the AVO that is currently in place and that while steps are being taken to identify a suitable alternative place for her to reside, the interim position is that if she were discharged from the Hospital, there is currently no place for her to go until a refuge is identified.

15. The matter came before the Court on 29 May 2022 because it was proposed that CZ would be discharged from the Hospital without a clear plan as to where she would go. The position has changed since that time in one significant respect, which is that CZ has indicated her preparedness to be reassessed for admission to the DRP next Monday and, if accepted, to attend. That program is the most constructive step that has been identified to assist CZ to deal with the pressing issue of her substance abuse.

16. I understand the sense of despair felt by CZ’s parents and it is clear that in seeking the orders referred to above they are only doing what they see as being for the best interests of their daughter. However, the Court has to take account of the expert medical evidence indicating that her continued confinement at the Hospital will have negative impacts on her rehabilitation and that CZ is more likely to engage with the rehabilitation that is needed if she considers that it is her decision.

17. In my opinion, for these reasons, the appropriate course is to lift the order requiring her detention at the Hospital on the basis that she is prepared to stay as a voluntary patient until accommodation at a refuge becomes available and furthermore that steps to identify alternative accommodation at a refuge will likely only be able to be undertaken after the appointment on Monday with the DRP has taken place at which time her immediate accommodation needs will become clearer. In particular, if she is accepted again at the DRP and continues with her current indication which she has made to the Court that she is prepared and willing to attend the DRP, then the critical matter which engaged the Court’s concern on 29 May will have dissipated.

18. Accordingly, I make the following orders. The Court makes Order 6 on the grounds specified in s 8(1)(c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) but the Parties have leave to make submissions about the scope of the order.

Orders

1. NOTES that CZ has stated to the Court that she will attend her appointment at 11am next Monday 27 June 2022 with the [DRP] for admission to [the DRP’s] 3-month residential program and, if accepted, would agree to admission to [the DRP].

2. NOTES that CZ has stated to the Court that she consents to remaining as a voluntary patient at the [Hospital] until accommodation becomes available for her at a refuge which will be found for her by [the relevant service providers] which may be necessary until a place becomes available for her at [the DRP].

3. The plaintiffs’ Amended Summons, dated 22 June 2022, is dismissed.

4. All previous orders made in the proceedings are discharged.

5. No orders as to costs.

6. ORDER, subject to further order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (the “Act”) prohibiting the publication or other disclosure of any information tending to reveal the identity of CZ, the Mother, the Father, the Hospital, any witness in the proceeding and any of the medical practitioners, nursing staff or other such persons who have provided or are to provide medical, surgical and or nursing or ancillary treatment to CZ.

7. Liberty to apply on 1 day’s notice.

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Decision last updated: 05 July 2022