Crossley v Cerolini
[2011] VSC 268
•9 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 2193 of 2011
| ROSEMARY CROSSLEY | Applicant |
| v | |
| CATHY CEROLINI | Respondent |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2011 | |
DATE OF RULING: | 9 May 2011 | |
CASE MAY BE CITED AS: | Crossley v Cerolini | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 268 | |
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INTERLOCUTORY INJUNCTION – Application by an officer of an organisation that provide services to people with little or no speech – Respondent an officer of the Department of Human Services who looks after and cares for a disabled individual with severe cerebral palsy – Applicant seeks injunction against the carer to restrain the carer from preventing the applicant from accompanying the disabled individual to a conference in Adelaide - Applicant says individual is able to communicate wishes and has expressed her wish to attend the conference – Carer and the individual’s parents oppose the application - Held that inappropriate for the court to decide on an interlocutory application whether or not the individual is able to communicate - Evidence not conclusive whether or not such communication is possible – Application denied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Meldrum QC with Mr E Nekvapil | Mallesons Stephen Jacques |
| For the Defendant | Ms J Davidson | Victorian Government Solicitors Office |
| For the Office of the Public Advocate | Mr P Grano | Office of the Public Advocate |
HIS HONOUR:
Dr Rosemary Crossley applies against Cathy Cerolini, an officer of the Department of Human Services, for a declaration that Ms Cerolini does not have a lawful right, and further and alternatively it would be unlawful for the Department of Human Services, to prevent Dr Crossley from accompanying Leonie McFarlane to attend the AGOSCI conference in Adelaide on 11 May 2011.
Dr Crossley further seeks an injunction restraining Ms Cerolini from preventing Dr Crossley from accompanying Leonie McFarlane to attend the conference and a declaration that it would be unlawful for the Department of Human Services to prevent Dr Crossley from associating with Leonie McFarlane.
The matter has been brought on with very short notice.[1] The application is supported by an affidavit of Dr Crossley.[2] She deposes that she is currently a director of Deal Communication Centre, and that Deal has a registered office at 53 Dandenong Road, Caulfield. Deal was established in 1986 as a non‑profit organisation to provide services to people with little or no speech. Deal provides services to around 200 different clients each year, who are not charged for the service they receive. Dr Crossley says she has a Bachelor of Arts from the ANU, a Diploma of Education from Melbourne State College, a Master of Education from the University of Melbourne and a PhD from Victoria University. Dr Crossley says that both her Masters of Education and Doctorate of Philosophy were in the field of augmentative and alternative communication, which is ordinarily called non‑speech communication. Dr Crossley says she has been providing services in the field of non‑speech communication to people with severe speech impediment since 1977, when she started teaching children with cerebral palsy to use non‑speech communication at St Nicholas Hospital, Melbourne.
[1]The application has been commenced by an originating motion of 9 May 2011, that is the day of this hearing.
[2]Affidavit of 9 May 2011.
Dr Crossley says she has published three books on non‑speech communication as well as numerous articles, and has presented papers at national and international conferences in the field of non‑speech communication. She says that in 1986 she became a member of the Order of Australia for services to people with severe communication impediments.
Leonie McFarlane was born on 1 September 1962 and is 48 years old. She resides at 1139 Dandenong Road in a community residential unit operated by the Department of Human Services. Dr Crossley says that Leonie has severe cerebral palsy, which precludes her from walking, talking intelligibly and feeding herself. She has had this condition since birth. Dr Crossley says that she first met Leonie in early 1974, when she helped organise a teacher training course based in St Nicholas Hospital, where Leonie was a resident. She says that she met Leonie on a weekly basis from 1974‑1977.
Dr Crossley says that from 1977‑1980 she met with Leonie daily as a teacher of non‑speech communication methods at St Nicholas Hospital. She says that her contact with Leonie ceased when her teaching duties at St Nicholas Hospital were terminated in 1980 and they resumed in 1983, when Leonie was attending a special education program at then Spastic Society. Dr Crossley says that during this period, she saw Leonie three days a week.
Dr Crossley says that in 1985 St Nicholas Hospital closed and Leonie moved to her current address. Dr Crossley says that since 1985 she has maintained contact with Leonie in two forms: social contact on about 400 occasions because Leonie’s friend from St Nicholas Hospital, Ms Anne McDonald, resided with her; and professional contact on at least 100 occasions when Leonie had come to Deal to see her or other professional staff. Dr Crossley said that the social contact included visits to Leonie’s home in Dandenong and at Dr Crossley’s home; day outings, for example to Melbourne Museum, the cinema, the theatre and art galleries; and trips to Birregurra in the country, where they stayed overnight on several occasions. Dr Crossley says that this contact continued until 21 April 2011, when she was barred from seeing Leonie. In 2011, she says that they had been on eight outings and Leonie had stayed at her home for three nights.
Dr Crossley says that Leonie's parents are Eleanor McFarlane and David McFarlane. Dr Crossley says that she met Leonie's parents twice at St Nicholas Hospital between 1977 and 1978, when she believed they came from Swan Hill to visit Leonie. At that time, Leonie’s parents gave Dr Crossley no indication that they disapproved of her seeing Leonie and since 1978 she has only met Leonie's parents on three occasions all occurring in 2011.
Dr Crossley says that she has reported to the Department of Human Services, and Scope in relation to Leonie. Dr Crossley says that she is not aware of any other reports in relation to Leonie's ability to communicate. There are brief notes about therapy sessions and treatment recommendations in Deal files and she produces a report dated 25 March 2011, another dated 29 September 2008, and another dated 18 November 2008. Dr Crossley says:
Based on my social contact with Leonie and my professional experience and expertise, I believe that Leonie is able to make autonomous, rational and informed decisions for herself. On numerous occasions I have suggested courses of conduct to Leonie and if Leonie does not like my suggestion, she will communicate no to me.
Dr Crossley further says that:
Leonie requires equipment to assist her to communicate her choices. She currently communicates in two primary ways: Leonie can activate switches through head movement and the switch mounted to the right of her head says yes and the switch mounted to the left of her head says no and, secondly, Leonie can point, with assistance, to an alphabet board.
Dr Crossley says that Leonie and Anne McDonald were friends from St Nicholas Hospital. Dr Crossley says they decided to write a joint presentation highlighting differences in their lives made by having and not having access to non‑speech communication, and she exhibits an abstract of the presentation dated 22 May 2010. The abstract runs to some four or five pages. Dr Crossley says that Leonie and Anne submitted the presentation to the ISAAC International Conference on Non‑Speech Communication, where it was accepted for presentation, and she says Anne presented it at the conference in July 2010 in Barcelona. She says that Leonie and Anne also submitted the presentation in August 2010 to the AGOSCI Biennial Conference, entitled “Taking it to the Streets”, to be held in Adelaide from 11 May to 14 May 2011. She says that Leonie and Anne intended to co‑present the presentation, if it were accepted. Dr Crossley says that Anne died on 22 October 2010 and Leonie learned that AGOSCI had accepted the presentation on 15 November 2010. Dr Crossley says that she asked Leonie, in November 2010, if she still wanted to make the presentation and Leonie communicated to her that she wanted to proceed with the presentation at the AGOSCI conference in Adelaide. Dr Crossley says that she asked Leonie, in January 2011, if she wanted to apply for a scholarship being advertised by AGOSCI and funded by the Department of Families, Housing, Community Services and Indigenous Affairs. Dr Crossley says that Leonie communicated to her that she wanted to apply.
On 17 March 2011, Leonie was formally advised that she had received a scholarship in the amount of $1170. Dr Crossley says that she has organised Leonie’s travel arrangements to and from Adelaide and booked an apartment in Adelaide for accommodation. She says that her partner, Chris Borthwick, and she have agreed to accompany Leonie to Adelaide to provide her with care. Dr Crossley says, “Chris and I have also agreed to meet any costs not covered by the scholarship.” Dr Crossley says that she expects to expend around $1000 in total in respect of travel, accommodation and other incidental costs. Dr Crossley says, “I do not seek reimbursement for the costs and I have never sought reimbursement for any of the services I provide to Leonie.”
Dr Crossley says that on 26 February 2011, she emailed Mark Bullen, the acting manager of the community residential unit in Dandenong Road, to provide him with details of Leonie’s trip to Adelaide. Dr Crossley says that she asked Mark to notify Leonie’s parents as a matter of courtesy. Dr Crossley says that in early March, Ben O’Shannessy, the operations manager, told her by telephone words to the effect that Leonie’s parents refused consent for the travel to Adelaide. Dr Crossley says that she told Ben words to the effect that Department of Human Services and Leonie’s parents had no right to stop Leonie from going to Adelaide.
Dr Crossley says that on about 15 March 2011, Ben told her by telephone words to the effect that Leonie’s mother did not want Leonie to go to Adelaide because Leonie was already going on a four‑day trip, organised by the Department of Human Services, in April. Dr Crossley says that she suggested the four‑day trip be postponed. Dr Crossley says that on 7 April 2011, she was told by Sandy Dove, a community residential supervisor, words to the effect that the trip had been postponed to June. She says that Cathy Cerolini, employed by the Department of Human Services as the Disability Accommodation Services Manager - Inner, organised a meeting to attempt to resolve the matter. Dr Crossley says that on 29 March 2011 she made a video recording of Leonie during Leonie’s regular Tuesday appointment at Deal premises. In the video, Dr Crossley says that Leonie communicates that she wants to go to Adelaide and that Dr Crossley recorded the video in preparation for the planned meeting.
Dr Crossley says that the meeting occurred on 31 March 2011 at the community residential unit in Dandenong Road. Attending the meeting were Leonie’s parents, their cousin Rhonda, Ms Cerolini, Seth Howell from VALID, four Department of Human Services staff members, Leonie and Dr Crossley. Dr Crossley says that the outcome of the meeting was that Leonie’s parents agreed that Leonie could go to Adelaide. Dr Crossley says that she was asked to provide the necessary details to the community residential unit to facilitate Leonie’s trip to Adelaide. Dr Crossley says that after the meeting she confirmed Leonie's attendance with AGOSCI. Dr Crossley says that Leonie's parents, Rhonda and Seth Howell, attended Deal’s premises for an hour on 14 April 2011 and an hour on 15 April 2011. She says that she was providing professional services to Leonie on both occasions.
Dr Crossley says that during those visits on 14 and 15 April 2011, Leonie’s parents, Rhonda and Seth Howell, observed Leonie communicating with the assistance of equipment. Dr Crossley says that Leonie was tired and because the equipment used was malfunctioning, Leonie's communication was not to the standard of her ordinary capacity. Dr Crossley says that she believes it was open to those present to have some doubts about Leonie's capacity to use the equipment as it was then set up.
Dr Crossley says that on 19 April 2011 she was informed by VALID that Leonie’s parents did not think that she could communicate and withheld their consent for Leonie to go to Adelaide. Dr Crossley says that she believes this opinion was based on observations made on the visits to Deal on 14 and 15th April 2011. Dr Crossley says that on 21 April 2011, Ms Cerolini informed her by email that she was not to meet Leonie or have any contact with her henceforth. Dr Crossley says that the email quoted Kevin Stone of VALID’s email dated 19 April 2011, which stated, “We have therefore advised the department, on behalf of Leonie and her parents, that permission for Leonie to accompany you to Adelaide is withdrawn.” Ms Cerolini’s email further said, “Leonie is unable to have contact with yourself” until Leonie’s support plan was reviewed. Dr Crossley says that she understood from this that Ms Cerolini had accepted the advice from Kevin Stone and that she intends to prevent Dr Crossley from accompanying Leonie to Adelaide. Dr Crossley says that she believes that no date has yet been set for the review of Leonie's support plan. Dr Crossley says that she holds this belief because the review cannot proceed without her involvement because of Deal’s role in Leonie's current support plan.
Dr Crossley says that on 24 April 2011, on Easter Sunday, Chris Borthwick visited Leonie at the community residential unit in Dandenong Road and on 1 May 2011, Barbara, a staff member at the community residential unit, orally informed her that Chris Borthwick was banned from contacting Leonie henceforth. On 2 May 2011, VALID informed Dr Crossley that Chris Borthwick was banned from contacting Leonie henceforth.
Dr Crossley says that on the basis of the above facts, she believes Leonie has adequate communication skills and that Leonie has expressed a desire to go to Adelaide to present at the AGOSCI conference. Dr Crossley says that on the basis of the above facts, she believes that Leonie’s parents do not want Leonie to go to Adelaide and will not accompany Leonie to Adelaide themselves. Dr Crossley says that she believes that if she attends the community residential unit in Dandenong Road for the purpose of accompanying Leonie to Adelaide she will be prevented from contacting Leonie and from accompanying her to Adelaide. Dr Crossley says that, on the basis of these facts, she believes that if she does not accompany Leonie to Adelaide, she will not be able to attend the AGOSCI conference.
Dr Crossley’s application is opposed by the Department of Human Services and Cathy Cerolini. Also, Mr Phillip Grano appeared from the Office of the Public Advocate and made helpful submissions. He, amongst other things, pointed out that in 2008 a Victorian Civil and Administrative Tribunal guardianship list order was made in relation to Leonie McFarlane concerning her financial affairs. That order was made in favour of the State Trustees Ltd. Also tendered was a letter from Mr Seth Howell, the individual advocacy coordinator for VALID, to Ms Cerolini. Mr Howell has been instructed by the parents of Leonie to apply to VCAT, which he has done, for a guardianship order appointing Leonie's mother as her guardian.
Mr Meldrum QC, who appears for Dr Crossley, submits that Leonie does not and would not be eligible for a guardianship order to be made because she is able to communicate and carry out the other functions for which a guardianship order is made if those functions are not present.
The letter from Seth Howell paints a different picture to that put forward by Dr Crossley. It says:
VALID was contacted on 17 March 2011 by Eleanor McFarlane, who was referred to us by the Office of the Public Advocate. Eleanor raised concern that Rosemary Crossley from Deal Communication Centre Inc was planning to take Leonie to a conference in Adelaide and had stated Leonie had given consent to Rosemary that she wanted to attend. Eleanor indicated she does not believe Leonie has the capacity to communicate and therefore was very concerned about Leonie's vulnerability to abuse. She requested VALID's advocacy involvement to assist in ensuring that Leonie's rights were being respected.
In response to this request, I agreed to meet Leonie at her home to see if the she could communicate with me and to ascertain whether she would like me to provide her with advocacy support to ensure her human rights are protected.
I met Leonie for the first time on 31 March 2011 a at her home in Malvern. Prior to meeting Leonie, I read through all current documentation, including her support plan, which entailed her communication plan. Rosemary Crossley provided me with a number of background reports and documents prior to my meeting with Leonie. I also had the opportunity to meet with long‑term staff, who have supported Leonie for more than 15 years. It was explained to me by house staff that they had tried extensively a range of communication strategies with Leonie, including yes/no switches, recommended by Rosemary Crossley, but all were discontinued because there was no consistency or validity in the responses they were receiving from Leonie. The two long‑term staff members I spoke to had formed the opinion that Leonie cannot communicate on an intelligible level.
When I met with Leonie one‑on‑one, I informed her who I was and why I was there. I asked her a number of questions and attempted to implement the communication strategies that were recommended in the documentation I had previously received. One such strategy was to hold your hands in front of Leonie’s face at eye level and ask her to look at your left hand to respond yes and to your right hand to respond no. Doing this, I proceeded to ask Leonie a number of questions. After a short period of time, I concluded that Leonie was not communicating with me in a meaningful manner and in fact concluded that she was uncomfortable or irritable by her body language and the verbal groans she was making.
A short time later, Rosemary Crossley arrived at the house for the scheduled meeting to discuss Leonie going to the conference in Adelaide. I asked Rosemary if she would be happy to support Leonie to communicate with me and she agreed. It was decided that it would be most appropriate for Rosemary to have a couple of minutes to set up Leonie's yes/no switches on her wheelchair and get Leonie in the right postural position before proceeding. When Rosemary was ready, she asked Cathy Cerolini from DHS and myself to come into Leonie's bedroom. The yes/no switches that Rosemary had attached to Leonie's wheelchair sat either side of her face. It was explained to me that when asked a question, Leonie would be able to move her head to the right to respond yes or to the left to respond no. Rosemary started by asking Leonie to hit the no switch. Leonie moved her head to the right and hit the yes switch, which was registered and verbalised by the speaker attached to the switches. Rosemary asked Leonie again to please try and hit the no switch. Leonie responded by moving her head to the right and hitting the yes switch again. Rosemary continued to ask Leonie to hit the no switch and Leonie continued to move her head in what looked like a non‑meaningful way and often hitting the yes switch. By this stage, Rosemary was offering many suggestions for why it was not working. She started by saying that she must not have configured the switches correctly, moving to then say that Leonie was not sitting in the right position, and finally stating that Leonie must be too tired. After a period of time, Cathy Cerolini and myself suggested that we move ahead with the meeting, due to time constraints.
Prior to the commencement of the pro meeting, Rosemary showed a 30‑second video on her iPad that she recorded earlier that week. The content of the video was Leonie sitting in her wheelchair directly in front of the camera with the yes/no switches in operation. Rosemary first asked Leonie if she would like to go to the conference in Adelaide. Leonie responded by moving her head to the right and hitting the yes switch. Rosemary then asked Leonie, “Would you like me to register you for the conference in Adelaide?” Leonie again responded by moving her head to the right and hitting the yes switch. Rosemary clearly presented this video as evidence to show Leonie had consented to going to the conference in Adelaide. However, I am not convinced of the reliability and validity of Leonie’s responses in the video. The video was only approximately 30 seconds long and only consisted of the two questions and responses as outlined above. Furthermore, there was no demonstration at the start of the video that showed the audience that Leonie was understanding the questions or responding in a meaningful way.
During the meeting, Rosemary explained in detail more information about the conference in Adelaide so that Leonie's parents, Eleanor and David, were better informed, as they had no information previously. Cathy Cerolini also raised concern that DHS was not aware of the conference and that Rosemary had not been communicating with house staff. After hearing all of the information from Rosemary, Eleanor McFarlane requested a break to discuss the situation with Cathy and myself. I informed Eleanor and David that from the information I had to date, I had significant concern surrounding Leonie’s capacity to understand and consent to going to a conference in Adelaide. I also raised concern that to have a major conflict in Leonie's home in front of Leonie may be very inappropriate. After much discussion, Eleanor and David came to the decision to inform Rosemary that they would allow Leonie to go to the conference in order to avoid a major conflict at the house and give them more time to gain more information. Upon the recommencement of the meeting, Rosemary was informed of Eleanor and David’s decision and she was very happy with this.
At the end of the meeting, Rosemary made an offer to Eleanor, David and myself that if we wanted to arrange a more appropriate time and place to show Leonie communicating, she would be happy to facilitate this. I advised Mr and Mrs McFarlane that it would be a good idea to give Rosemary the opportunity to show how Leonie communicates in a different environment. I therefore arranged to support Mr and Mrs McFarlane in two separate meetings with Rosemary at her Deal office on the 14th of April 2011 between 4pm and 5pm and on the 15th of April 2011 between 9.30am and 11am.
In the first of our meetings on the 14th, Rosemary started by assembling Leonie’s switches and ensuring that Leonie was in the right position. Rosemary then asked Leonie to hit the no switch. A short time later, Leonie moved her head to the right and hit the yes switch. Similar to my first experience with Leonie, she continued to move her head around in what looked like a non‑meaningful way, occasionally hitting either of the switches. Rosemary continued to ask Leonie to hit the no switch and Leonie continued to respond in the same non‑meaningful manner. Rosemary seemed very alarmed that Leonie was not communicating in a meaningful way and again gave a number of reasons why the switches were not being effective, including that Leonie must have been tired, the switches must not have been assembled correctly, or Leonie’s postural position must be incorrect.
After about an hour, it was decided that there was no point continuing because there was no consistency of Leonie's responses. Furtherer more, Leonie made a number of groaning sounds throughout the meeting. When I described Leonie’s body language and verbal groans to the long‑term staff member that picked her up, they stated that behaviour is indicative of Leonie being irritable and uncomfortable and wanting to get out of her chair.
One example of Leonie’s capacity that stood out to me occurred just before we left the meeting on the 14th. Rosemary became aware that Leonie’s sister was quite sick with chickenpox and, as such, found two cards that she suggested Leonie could send her with a get well message. Rosemary held up both cards in front of Leonie and asked her to look at the one that she would like to send to her sister. Leonie continued to look around the room and did not look at either card for any extended period of time. Rosemary attempted to ask this question a number of times and eventually gave up because there was no consistency in Leonie's response.
I found the way Rosemary conducted herself in this meeting very concerning. Rosemary spent the majority of the time talking to Eleanor, David and myself, explaining how the different communication aids worked, rather than actually supporting Leonie to communicate with her family and showing that they were valid and effective ways to support Leonie to communicate. Furthermore, when Rosemary was not asking Leonie questions, she would turn the speaker off at the back of Leonie’s chair so that when Leonie hit a switch, the response would not be verbalised by the speaker. This raised a number of concerns as to why Rosemary would turn the device off. All of the same messages and trends continued in the meeting on the 15th. Even though we met at 9.30 and it was very unlikely that Leonie was tired, she continued to present in the same manner and it became quite evident she does not have the capacity to communicate on an intelligible level.
Having come to that conclusion, which is also the view shared by Leonie’s parents, I wish to advise that I do not believe Leonie is capable of giving her consent to (indistinct) with Rosemary Crossley and to any decision to attend the conference with her in Adelaide. I also wish to express my disappointment these issues have arrived at this point after many years, apparently without any attempt by DHS to ensure the validity of Leonie’s ability to communicate or to formalise her involvement with Deal through a properly developed support plan.
It has been put to me, with considerable force, that if Leonie can communicate and she is not permitted to go to Adelaide by Dr Crossley taking her, she would be bitterly disappointed and it may cause her some harm in that sense. On the other hand, it has been put that if Leonie cannot communicate, there are questions concerning invasion of her privacy and her rights. At the conference her personal life would be exposed in the presentation in a public domain, and she will be subject to considerable publicity.
It would have be useful if someone could represent Leonie in this application. The application for a guardian has been made. As yet no guardian has been appointed. It has been suggested to me that there is a real issue whether a guardian will be appointed in any event.
The main order sought by Dr Crossley proceeds on a false assumption. It proceeds on the assumption that Leonie is going to Adelaide and that all that Dr Crossley is seeking is an order which would restrain the Department of Human Services from preventing Dr Crossley from accompanying her to Adelaide. In fact, Leonie is not going to Adelaide unless she is taken by Dr Crossley. The order that is being sought is, in effect, an order from the Supreme Court of Victoria that Dr Crossley, who has no legal or formal relationship with Leonie, is entitled to take Leonie from the care of the Department of Human Services, where she has been residing for many years, against the wishes of the Department of Human Services.
The evidence about Leonie’s ability to communicate is divided. It would be inappropriate for me to express a view either way on the matter during an urgent application for an interlocutory injunction, other than to say there is an arguable case that Leonie can communicate and an arguable case that she cannot. This may be a matter for VCAT to determine under the guardianship application. But I am not called upon to decide whether that is the question for VCAT, all I am called upon to decide is whether I should grant the application for interlocutory relief.
I am not prepared to grant the application. In the circumstances, I appreciate the disappointment this decision may give to Leonie. On the other hand, I think it would be a very bold step in the face of the current state of the evidence for this court to order the carer of Leonie to hand her over to an individual to travel to Adelaide, against the wishes of her parents and her carer. For that reason, I refuse the application.
I wish to add the following to the reasons I delivered on 9 May 2011. The Court dealt with the applications in the summons of 9 May 2011 as seeking an interlocutory injunction to restrain the defendant from preventing the plaintiff accompanying Leonie McFarlane on 11 May 2011 to the Adelaide conference referred to in the affidavit of the plaintiff. I did not deal with the other relief sought. The dismissal of the application is limited to a dismissal of the application for an interlocutory order. The originating motion and summons otherwise remain and stand for the purpose of seeking final relief.
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