Darcy v State of New South Wales

[2011] NSWCA 413

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Darcy (bht Diane Aldridge) v State of New South Wales [2011] NSWCA 413
Hearing dates:	29 August 2011
Decision date:	21 December 2011
Before:	Allsop P at 1 Beazley JA at 11 Whealy JA at 13
Decision:	Appeal is dismissed with no order for costs.
Catchwords:	TORTS - wrongful imprisonment - detention of person with disabilities in residential centre - whether imprisonment - absence of formal consent by Public Guardian - whether Public Guardian acquiesced in detention - justification for detention - availability of aggravated or exemplary damages - principles
Legislation Cited:	Guardianship Act 1987 Lunacy Act 1898 (NSW) Mental Health (Criminal Procedure) Act 1990 (NSW) s32
Cases Cited:	Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 Collins v Wilcock [1984] 1 WLR 1172 Gavin McFadzean v Construction, Forestry, Mining and Energy Union (CFMEU) [2007] VSCA 289 Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1992] 1 AC 58 Knight v State of New South Wales [2004] NSWSC 791 Kuchenmeister v Home Office [1958] 1 QB 496; [1958] 1 All ER 485 Lamb v Cotogno (1987) 164 CLR 1 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289 State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 Symes v Mahon [1922] SASR 447 Troubridge v Hardy (1955) 94 CLR 147 B v Forsey (1988) SC HL 28 Uren v John Fairfax and Sons Pty Ltd (1966) HCA 49; 117 CLR 118 XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448
Texts Cited:	Fleming's The Law of Torts, 10th ed (2011) edited by Carolyn Sappideen and Prue Vines (Thomson Reuters (Professional) Australia Limited) Second Restatement of Torts (1965) United States Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) Lexis Nexus Butterworths Mayne and McGregor on Damages, 12th ed (1961) Sweet & Maxwell
Category:	Principal judgment
Parties:	Joanne Darcy (by her tutor Diane Aldridge) (Appellant) State of New South Wales (Respondent)
Representation:	C Birch SC / K Edwards (Appellant) S Norton SC / L Boyd (Respondent) Public Interest Advocacy Centre (Appellant) Crown Solicitors Office (Respondent)
File Number(s):	2007/291149
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2010-09-21 00:00:00 Before: Johnstone DCJ File Number(s): 1240/2007

Judgment

1. ALLSOP P : I have read the reasons of Whealy JA. I agree with his Honour's analysis of the facts and with his Honour's reasoning. I would only add the following comments, which I do not intend to be a derogation from that agreement.

1. The question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law. In this case, the liberty of Ms Darcy was intimately bound up with the responsibility in others to have due regard for her health, including her personal development as an adult, and, most importantly, her safety. Also relevant, but not so intimately concerned with her freedom and human rights, was the safety of others. That was relevant because it could affect her own safety. She was prone to irrational conduct and violence. That could see her hurt in retaliation; it could see her incarcerated in prison. If that were to occur it could be safely assumed that whatever the deficiencies of Kanangra, they would not compare to the risks she would face in prison.

1. Lawful justification often comes from consent as an exercise of human free will. Here, the public guardian had the lawful authority to decide where Ms Darcy lived. Those facts do not create a simple logical and linguistic framework that for there to be lawful justification the public guardian must say "I consent" to Ms Darcy being at Kanangra; nor does the expression of words that the public guardian does "not consent" provide the answer that there was no justification. Ms Darcy resided at Kanangra. What the public guardian plainly did not consent to was her remaining at Kanangra on a permanent placement basis. This was because of its relative unsuitability. I say "relative" because the conditions at Kanangra were not appropriate in comparison to what could (and in the public guardian's view, should) be made available in supervised community residential accommodation, assuming the availability of funds and assuming the making of a decision to allocate such funds to meeting Ms Darcy's needs. It may have been inappropriate in that sense; it was obvious, and assumed (indubitably correctly) by all concerned (at the public guardian and DoCs) that it was preferable to leaving Ms Darcy to her own devices unsupervised in the community and to the risk of prison.

1. It was accepted in argument that if the public guardian in fact agreed to Ms Darcy living at Kanangra, there was no false imprisonment. It was not argued that because residence at Kanangra was imprisonment, the public guardian had no power or authority to agree to her being a resident there.

1. It is relevant to appreciate that at no time did the public guardian require or demand the release of Ms Darcy from Kanangra. To demand such was within its legal power. It did not do so because (as was too obvious for the need for any particular identifiable decision) such would have been profoundly contrary to Ms Darcy's interests. Rather, whilst wanting to put pressure on DoCs by saying that it had not consented to Ms Darcy remaining at Kanangra, it acquiesced and agreed that, until the Department provided better services, Ms Darcy should remain at Kanangra.

1. DoCs did not hold Ms D'Arcy at Kanangra against the will or contrary to the direction of the public guardian. It held Ms Darcy pursuant to the reluctant, but real, agreement and acquiescence of the public guardian, being the authority having legal power to decide upon accommodation for Ms Darcy.

1. This Court is not in a position even to commence to judge the legitimacy of any decision as to resource allocation that was the subject of much of the correspondence. On the evidence, all the people concerned at the public guardian and DoCs exercised their best efforts for the welfare of Ms Darcy. Beneficial intentions do not, of course, justify imprisonment. The police or other authorities have no power to sweep up people living rough and compulsorily house them for their own good, as perceived by the authorities. That is not, however, what happened here. The magistrate's order lawfully compelled Ms Darcy's attendance at Kanangra. Thereafter, the public guardian, as the authority capable of deciding on her behalf where she lived, acquiesced and agreed to her remaining at Kanangra but without, indeed expressly refusing, consent to her remaining there as a permanent placement.

1. There was no false imprisonment.

1. Costs should not be awarded against Ms Darcy or her tutor. This was an extraordinary case of real difficulty. The claim was not improperly brought. There was a public interest in the attempt to vindicate what were genuinely seen as Ms Darcy's rights. In all the circumstances, there should be no order as to costs.

1. I also wish to express my appreciation to the careful reasons of the primary judge and the careful and helpful submissions with which the Court was favoured by counsel and solicitors from both sides.

1. BEAZLEY JA: I have read in draft the reasons of Whealy JA and the additional comments of Allsop P.

1. I am grateful for Whealy JA's careful and sensitive analysis of the facts and his detailed approach to the law. Notwithstanding the difficult personal circumstances in which the appellant was for many years, I agree with his Honour's conclusion that there was justification for the appellant's continued residence at Kanangra. I also agree with the additional thoughtful comments of Allsop P. Accordingly, I agree with the orders proposed by Whealy JA.

1. WHEALY JA: Kanangra is a residential centre which accommodates and treats persons with intellectual or developmental disabilities. It is located in Morrisett, New South Wales and is adjacent to the Morrisett Hospital for Psychiatric Treatment. The appellant (Ms Darcy) was a resident at the Kanangra Centre from the 20 June 1996 to the 18 December 2002, a period of some six and a half years. Although she was well treated at Kanangra, and indeed matured considerably during the time of her residence, she was not happy there and expressed a wish to leave on many occasions. She was not, however, permitted to leave in the absence of suitable outside accommodation being available for her.

1. Ms Darcy brought proceedings in the District Court of New South Wales claiming damages for wrongful imprisonment. On the 21 September 2010, his Honour Judge Peter Johnstone (the primary judge) found against her and entered a verdict for the respondent. There had been no dispute at trial that the respondent was liable to be sued in respect of Ms Darcy's claim. The claim was founded on the actions of the Department of Community Service (DoCS) which operated in Kanangra at the relevant time.

1. The primary judge found that Ms Darcy had not been wrongfully imprisoned during her stay at Kanangra. In the event that he were wrong in this decision, he contingently assessed damages at $100,000 but indicated that he did not consider the matter an appropriate one for the award of aggravated or exemplary damages.

1. In this appeal, Ms Darcy relies on grounds of appeal which raise the following critical issues:-

(a) Whether Ms Darcy, either throughout the entire period she spent at Kanangra, or for some part of that period, was detained there against her will.

(b) If Ms Darcy were so detained, whether her initial residence at Kanangra after her admission on the 20 June 1996 (or her later residence there) was justified in law by the orders made by the local court magistrate of Port Macquarie pursuit to section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

(c) If her residence at Kanangra constituted detention, whether such detention was consented to on her behalf by the Public Guardian, or otherwise sanctioned.

(d) Whether the Public Guardian was prohibited under the Guardianship Orders relating to Ms Darcy from so consenting.

(e) Whether there is a common law defence of necessity to a claim of false imprisonment and, if so, whether it applies to the circumstances of this case.

(f) Whether the primary judge was correct in ruling that this was not an appropriate case for the award of aggravated or exemplarily damages. In that regard, the quantum of damages generally was in issue.

(In relation to the issue arising under (d) this turn upon the interpretation to be given to a condition imposed by the Guardianship Board in appointing the Public Guardian to be Ms Darcy's guardian. However, Dr Birch SC conceded on the appeal that, if the Public Guardian had agreed to his client residing at Kanangra, this point would not be pursued.)

1. In order to understand how these critical issues arise and to understand how they may be resolved, it is necessary to spell out with some precise detail the factual circumstances relating to the appellant's general situation and her stay at Kanangra. I will turn to detail these matters at this stage.

The facts and evidence at trial

1. Ms Darcy was born 27 May 1977. She was 19 years old when she went to Kanangra and 25 years old when she left. By the time her trial came on for hearing, she was 33 years of age. At all relevant times, she suffered from an intellectual disability, a borderline personality disorder and epilepsy. The personality disorder was accompanied by a tendency to show violent behaviour towards other people. In addition, she was not capable of managing her affairs, and was partially incapable of managing her own person.

1. When Ms Darcy was a young child, her mother was unable to look after her. She was simply too difficult to handle. She first came to the attention of DoCS at the age of 8 when she was made a Ward of the State and placed into care. For the next 5 years, until she turned 13, she was accommodated by DoCS at various locations, including in Katoomba and Sydney, and then in a group home in Port Macquarie. When that group home was closed in 1993, Ms Darcy returned to live with her mother, and ceased to be a Ward of the State.

1. Ms Darcy then lived with her mother for a period. One of the consequences of the appellant's disabilities was that she had less social skill than other people her age and she was prone to deal with difficult or tense situations by outbursts of violence, during which she was physically difficult to control. During this period, Ms Darcy received assistance for this, and her other developmental difficulties from carers provided by DoCS, who would attend and give her support. Her mother was also provided with weekly respite assistance.

1. In January 1994, Ms Darcy commenced supported employment at the Hastings Foundation, a workshop for disabled people, but only attended there for a short period because of behavioural problems. Whilst at this Foundation, she met a man called Gary Holland, with whom she commenced a relationship. She was in consultation with psychiatrists in 1994. In 1995, when she was 17, Mr Holland moved in with her at her mother's house. However, her behavioural problems continued and indeed worsened. Eventually, her mother approached DoCS to request that alternative accommodation be found for her daughter. In June 1995, while Ms Darcy was still 17, she and Mr Holland moved out into a flat at Cliftonport Macquarie, where they lived together for a short period. His level of disability was less serious than hers, and he was more capable of looking after himself. When he was at work, support amounting to some 20 hours per week was provided to Ms Darcy by carers made available through DoCS.

1. However, Ms Darcy's behavioural problems further deteriorated, and she saw a psychiatrist again in September 1995, following numerous episodes of "upsetting other people". This involved her going into the homes of neighbours, often uninvited, and at times she was verbally abusive to them. She was also involved in episodes with community workers when, for example, she would block the door to prevent them leaving. Apparently she could be quite threatening in this situation.

1. After Christmas 1995, the appellant fell out with Mr Holland and moved out of their shared flat. Thereafter, she resided at a number of different locations. Further episodes occurred which brought her to the attention of the police and the criminal justice system. In early February 1996, she assaulted a staff member at a group home, and a few days later, she bit a police officer who was attempting to remove her from the group home after she had created a disturbance. As a result, her DoCS Case Manager, Alison Bate, took her to see a consultant psychiatrist in Chatswood on 8 February 1996.

1. Ms Bate then prepared an application to the Guardianship Board for guardianship and financial management orders. By this time, Ms Darcy was being accommodated alone in a flat, and required 24-hour daily support from various sources, such as Hastings Respite Care and Adult Community Education Services.

1. The hearing in relation to the application was held by the Guardianship Board at Port Macquarie on 28 March 1996. In its reasons for decision, the Board said (Red 28 - 31):-

14. ... The medical, psychological and psychiatric reports available to the Board indicate that Ms Darcy has a moderate developmental disability, along with epilepsy, which is controlled on medication, and behavioural disturbance. She also has some medical problems and has gained approximately 5 stone in weight over the past year.

The Board was, therefore, satisfied that Ms Darcy is a person with a disability which affects her capacity to manage her personal affairs. The Board was also satisfied that she is a person in need of a guardian.

This need arises largely because Ms Darcy's aggressive and sometimes violent behaviour has given rise to a number of problems in the provision of appropriate accommodation, support and health care.

Ms Darcy has been unable to stay in any one place of accommodation for any length of time since her mother, Ms Stringer, indicated that she could no longer cope with her at home. She was, at the time of the hearing, living alone in a flat. She was receiving approximately 20 hours support per day, provided by various services. It is likely that she will have to leave this accommodation however, following an incident in which she smashed a neighbour's window when her support worker failed to arrive...

The provision of adequate support services for Ms Darcy is a major problem for local service providers. She is currently in receipt of a package of services cobbled together with various local community and government agencies using funding from a variety of sources. Ms Darcy's behaviour has, in the past, led to the withdrawal of services and creates an on-going problem in finding staff who are willing to work with her. It has resulted in her having to be accommodated alone, thus increasing the cost of 24 hour supervision. Those present expressed their concern that funding must eventually run out.

Ms Darcy's behaviour has also resulted in criminal charges...

Ms Stringer told the Board that she would prefer not to be appointed as her daughter's guardian. The Board agreed that, given the complexities of the issues involved as well as the potential for conflict and stress, it was necessary to appoint the Public Guardian.

15. The Board made formal findings as following (Exhibit D8):

" Guardianship

1. Ms Joanne Darcy has an intellectual disability by virtue of which she is restricted in one or more major life activities to such an extent that she requires supervision and social habilitation. Consequently, she is a person who has a disability within the meaning of the Act.

2. By virtue of that fact, Ms Darcy is at least partially incapable of managing her person.

3. The circumstances of the case mean that it is necessary and appropriate that her property and affairs be subject to management under the Protected Estates Act 1983.

Financial Management

1. Ms Darcy is not capable of managing her affairs.

2. The circumstances of the case mean that it is necessary and appropriate that her property and affairs be subject to management under the Protected Estates Act 1983.

3. Management of the property and affairs of Ms Darcy should be committed to the Protective Commissioner."

16. The Board therefore made a Management Order under the Protected Estates Act 1983 and a Limited Guardianship Order under the Guardianship Act 1987 both dated 28 March 1996. The latter of these two orders placed [Ms Darcy] under the guardianship of the Public Guardian for a period of 12 months, with the following limited functions and subject to certain standard conditions (Exhibit D1 - 2):

"5. The guardian shall have the following functions in relation to Ms Joanne Darcy:

(a) Accommodation

To determine where Ms Joanne Darcy may reside.

(b) Health Care

To determine...health care and...treatment...

(c) Medical and Dental Consent

To consent on her behalf to medical and dental treatment...

(d) Services

To make decisions on her behalf concerning major services to which she should have access including, in particular, legal services, accommodation support services and leisure services."

"6. This order is subject to the following standard conditions :

(a) The guardian, in the exercise of the above powers and functions, shall take all reasonable steps to bring Ms Joanne Darcy to an understanding of the issues affecting her and shall obtain and take into consideration her views when significant decisions are made.

(b) The guardian may not introduce or authorise any form of restraint or confinement of Ms Joanne Darcy, nor any threat of such restraint or confinement."

Condition 6(b) is the condition to which I have made earlier reference in the context of Dr Birch's alternate concession).

1. Finding appropriate accommodation for Ms Darcy following these events was problematical. This is evidenced from the Running Notes (Exhibit C) made by officers from the Office of the Public Guardian (OPG). As predicted by the Guardianship Board, the plaintiff was evicted by the Tenancy Tribunal from the premises in which she had been residing. The following extracts from the Running Notes indicate clearly the escalation in difficult behaviour leading to the Court hearing involving the various criminal charge brought by the Police against Ms Darcy for assault and malicious damage (Blue, 58-64):

16.04.96 "P/C from Alison Bate. Informed PG that Ms Darcy attended residential tenancy Tribunal this morning. Result is eviction from unit within t 4/52. Ms Bate wanted to know what other options there were. I restated PG's role, but suggested she look at respite placement maybe in Newcastle (Matfen Close) or Cooinda in New England Area. She suggested Kanangra. I stated this would not be a preferred option and to even PG to think of this she would need to show all other options have been tried and failed..."

23.04.96 "Meeting with Alison Bate...

In relation to future accommodation, Alison wished to pursue Kanangra... Mother does not wish to care for her... Respite Services in the area are home based and that nobody would accept her due to her reputation...

Recommended the following:

* That before Kanangra would be considered, the following applications are to be made and results forwarded to the PG;

* Home Based Respite

* Private Accommodation with investigation into the possibility of Ms Darcy moving in with a friend

* Respite non home based service statewide (Cooinda application to be made immediately)

* Department of Housing

* Boarding House - second last option

* Kanangra - last option"

23.04.96 "Visit to Ms Darcy - Ms Darcy wished to reside in a house or a flat with another boarder. She wished this person to be "Mark Marki". She was willing to move out of the area (as far as Taree or Forster - but no further). Ms Darcy has no concept of Boarding Houses or Respites... Ms Darcy stated that she wished to find work as staying home all day was "boring"."

19.06.96 "T/C from Alison Bate regarding Ms Joanne Darcy.

Advised that Ms Darcy is in police custody, and is going to court this morning.

Yesterday, Ms Darcy moved into a Dept of Housing flat with a friend, supported by Hastings Accommodation Support. The placement did not even last a night before Ms Darcy had assaulted her flatmate, and attempted to assault her carer. Both the latter left the house, then tried to return later, but were not able to gain access as Ms Darcy had evidently barricaded herself in... Finally, the police were called, and Ms Darcy was taken into custody. Apparently there has been a court appearance every month this year, apart from May. Generally, AVO/Assault issues...

Current Issues:

Ms Bates advised that she did not have an alternative placement option for Ms Darcy, but that she couldn't return to the flat in view of the fact that she had assaulted the [sic] flatmate. I advised Ms Bates that it was her responsibility to secure alternative options, or the service's responsibility to find Ms Darcy an alternative, and that they needed to have a planned response to the situation...

Ms Bates believes that Ms Darcy is expressing her inability to cope with community living, since all placements to date had broken down, even when she had 24 hour support...

I reiterated the importance of finding feasible alternatives, including exploring all options, and not resorting to Kanangra, which was what Ms Bates proposed...

I advised that we would not consent to Kanangra unless other options had been fully explored..."

1. It is clear that an impasse had been reached. The issue as to where Ms Darcy was to live was resolved, however, in the court proceedings in the Local Court at Port Macquarie on 20 June 1996.

1. The situation is best described by reference to Exhibit A to the Affidavit of Mr Rogers (Exhibit 1, Blue, 282 - 286). This was a report prepared by Ian Mussatt, a manager with DoCS in the local area. Having referred to the assault by Ms Darcy on her flatmate on the evening of 8 June 1996, and her subsequent time in custody while awaiting the hearing of the charge, Mr Mussatt said (referring to the court hearing on 20 June 1996):-

The Magistrate, after discussion with Joanne's legal representative, myself, Alison Bate, community worker, and Debbie Ryan, coordinator, Hastings Accommodation Service, refused to release Joanne back into the community, citing the safety of the community, Joanne's welfare and the safety of her support staff as his reasons. He indicated a secure placement was necessary... we, in Port Macquarie, could offer no alternative accommodation, and I spoke with Leanne Durrington re a placement at Kanangra and she was negotiating with Lorraine Yudaeff, CEO at Stockton... I spoke to Lorraine on two occasions and although recognising her difficulties, indicated that the Magistrate was seeking a placement with Department of Community Services, in lieu of remanding her in Mulawa Prison.

1. At the end of his report, Mr Mussatt concluded:-

Joanne cannot be managed in the community, even with 24 hour support. Her behaviour towards staff and others places them at risk of physical assault, threats, harassment and trespass. It is difficult to maintain behaviour management strategies, due to the high staff turnover and, as time goes by, the employment of less experienced staff. Joanne's behaviour in the community reduces the acceptance of the community to persons with intellectual disabilities.

A secure placement, such as a residential unit, would allow a more complete assessment of Joanne's medical and behavioural needs in a professional atmosphere. Group home placement is not considered appropriate, as experience has shown other residents and staff continue to be at risk of verbal and physical abuse...

1. The Local Magistrate, Mr SV Jackson, made the following order:-

Dealt with section 32 Mental Health (Crimes) Act. Dismissed and discharged and order that the defendant attend at Kanangra Centre Morrisett Hospital.

1. It is common ground that the Magistrate's Order was in fact a reference to section 32 of the Mental Health (Criminal Procedure) Act 1990 which provides:

(1) If, at the commencement or at any time during the course of

the hearing of proceedings before a Magistrate, it appears to the

Magistrate:

(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following.

(a) adjourn the proceedings;

(b) grant the defendant bail in accordance with the Bail Act 1978;

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may dismiss the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions; or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or

(c) unconditionally...

1. Ms Darcy was taken that day to Kanangra at Morrisett. She was driven there by Alison Bate. On the way, Ms Darcy was taken to her mother's place where Ms Bate told the mother (Blue, 30):-

The judge in Joanne's case wants an assessment done on Joanne, so I am taking her to Kanangra for a 2 - 3 months assessment. The judge didn't know what her abilities were so he ordered an assessment. I am taking her there now and will let you know when I have dropped Joanne off there.

From the perspective of DoCS, the position is explained adequately by Mr Mussatt in his report. I have earlier referred to his suggestion that a secure placement in a residential unit would allow a better assessment of Ms Darcy's medical and behavioural needs. In his report, however, Mr Mussatt spoke of an "exit plan" in these terms (Blue, 245):-

Joanne be permitted to be placed at Kanangra for at least 3 months to enable:

A full assessment of Joanne's behaviour and medical regime

Behaviour management strategies to maintain Joanne in the community with safety to staff and other persons

To enable alternate accommodation to be located for Joanne which will meet her, and her neighbours' needs

The opportunity to provide specialist school training for staff to meet Joanne's challenging behaviours

To finalise a funding package for Joanne to meet her needs for 24 hour support.

1. This report had endorsed on its final page the approval of Roxanne Ramsay, who was, at 20 January 1996, the acting Director-General of DoCS. The approval is in the following terms:-

Approved for 2 months commencing 20 June 1996. Placement contingent on appropriate vacancy in HRDSS. Port Macquarie CSS to be responsible for case management and ensuring movement back to community placement. Progress report to be provided to ADG by 20 July 1996.

1. Ms Darcy was received at the Kanangra Centre on 20 July 1996. She was placed in Unit 3 during this initial period. Unit 3 was a "secure unit", in which all the external doors and gates were locked. I shall, at a later point, describe in more detail the facilities and layout of the Kanangra Centre. For the moment, I wish to focus on the initial treatment and assessment she received upon arrival.

1. The relevant documents, are to be found at Blue, Vol 1, 76 - 78. They include a file which records details for Ms Darcy, including her principal diagnosis and a recitation of other conditions affecting her health and behaviour. The form notes:-

Special precautions: aggressive - assaultive, sudden mood swings, inappropriate touching of staff and clients!

The form also provides details of her mother, the DoCS officers in charge of her case and persons to be contacted at the Public Guardian and Protective Commissioner's Office. These included Mrs Patricia Davidson and James Ramos-Conna (each of these gave evidence before the primary judge).

1. The progress notes record the following:-

19 year old lady admitted from the community following a Magistrate's order (3 months). Joanne lived at home with her mother until 1 year ago. She repeatedly attacked her mother. She then lived with her boyfriend who she also assaulted. She lived in a variety of different group homes where she attacked fellow residents and staff. She would go into neighbours' houses and refuse to leave. Eventually 6 neighbours took out a restraining order and Jo had to leave that house. After the last incident she spent 2 nights in jail and her placement here was seen as the only other alternative. Her House Manager tells us that Jo can read and write and will go through the reports, etc in the office. When asked to do something that she does not want to do, she hangs her head and will not move/answer. If pressed further, an aggressive incident will occur... She is very well known to the police in their area and has assaulted several. She has 6 charges held over of mostly assault, trespass and damage to property. Staff in the area refuse to work with her due to her aggression. The staff who accompanied Jo said that she "presents better than she is". Jo has no money sense and refuses to pay for bills, outings, etc, instead just spends her money on herself... Her medication consists of:

Epilim 500mg

Mellaril 50 mg

Primidone 250mg au 500 mg

Triphasal 28

Aurorix 150 mg

She also brought with her Medicare card, a Commonwealth Bank card and a Commonwealth Bank key card. On admission, she seemed very confident and was able to help herself to her carer's car keys without her carer knowing!

1. Unfortunately, there are no records outlining the details of the assessment and treatment of Ms Darcy during her time in Unit 3. It seems that she was transferred to Unit 2 on 10 July 1996, presumably when her initial assessment had been completed.

1. There is a Nursing Unit Manager's Report (Blue, 335 - 336) dated 18 July 1996. The author is Jeanette Deaves, the Acting Nursing Unit Manager. This confirms that Ms Darcy's behaviour has been "reasonably settled", enabling her to be accommodated "in a less restrictive environment".

1. The author provided assessments of Ms Darcy's level of aggression, her non-compliance and sexual promiscuity while she had been in Unit 3. As to her present status, the Report states:-

Joanne has settled in fairly well in Unit 2, although there have been some verbal altercations with some of the clients. She attempts to nurture clients who are of a lower functional level, this can at times be heavy handed and domineering but mostly helpful. Joanne will take direction from staff to be gentler and less bossy. Joanne has displayed non-compliance but will usually complete tasks if she gains no positive feedback from her non-compliance.

1. The Report comments on the fact that Ms Darcy had been able to maintain contact with her mother, Mrs Stringer, with weekly phone calls. Mrs Stringer visited her daughter on 17 July 1996 and she "was able to look around Unit 2 and the grounds". It notes that:-

Patrick McEvoy, Joanne's Public Guardian, has been kept informed of Joanne's progress while at Kanangra.

1. The Report refers to the fact that assessments had been completed on a physical and medical basis. It provides details of the medication prescribed for Ms Darcy as at mid-July. The final part of the report concludes:-

Future plans while at Kanangra

To attend an activity training centre for diversional therapy, leisure skills and interreaction [sic] with other clients on a twice-weekly basis initially.

To be included in a program with a Special Education Teacher for assessment, then a functional literacy and numeracy skills development.

Reduction in medication as tolerated.

Speech pathologist assessment.

Overall

Joanne has settled into Kanangra reasonably well without any major aggressive outbursts. She appears to have benefited from the structured routine and limit setting on her unacceptable behaviours.

1. It is convenient now to describe briefly the Kanangra Centre, its layout and functions. This summary is taken from the affidavit of Carol Tranter, the affidavit of James Conna, and the primary judge's reasons for decision. Ms Tranter was the Nursing Unit Manager for several of the units at Kanangra between 1989 and 2003. At times she was also the Assistant Director of Nursing at the Kanangra Centre. Mr Conna (originally known as 'Ramos-Conna') was at relevant times a Senior Guardian with the Office of the Public Guardian. At the time the Guardianship Order relating to Ms Darcy was made, he was the person supervising Mr McEvoy. The latter was the officer of the Guardian who had the responsibility for ensuring Ms Darcy's wellbeing and welfare in accordance with the terms of the Guardianship Order. From May 1997 to August 1997, Mr Conna had direct responsibility for her as Senior Guardian.

1. Morrisett was established in or about 1901 under the Lunacy Act 1898 (NSW) and was an institution established for psychiatric patients. Kanangra was originally part of the old Morrisett Psychiatric Hospital. It is now a completely separate residential all treatment institution for people with disabilities. Morrisett Hospital still functions as an institution for the mentally ill. I shall briefly mention the history.

1. In 1983, the Richmond Report (a report into Health Services for the Psychiatrically Ill and Developmentally Disabled) led to a significant change in government policy. The focus was on closing large residential centres like Morrisett and reintegrating, where it was possible, its inhabitants into the general community. The policy required a "no admissions" policy for the Kanangra residential institute. The new policy envisaged that all people at Kanangra would move into community based housing and that eventually Kanangra would empty and close.

1. In about 1985, the responsibility for the 2 campus areas of Morrisett was formalised. Departmental responsibility for Kanangra, previously with the Department of Health, was split so that responsibility for psychiatric patients remained with the Department of Health and responsibility for people with intellectual disabilities was transferred to the Department of Youth and Community Services ("YACS"). YACS later became the Department of Family and Community Services and, still later, became the Department of Community Services ("DoCS"). When DoCS was created, the area north of Acacia Avenue became known as the Kanangra Centre. In or about 2001, responsibility for the Kanangra Centre was transferred from DoCS to the Department of Ageing, Disability and Home Care ("DADHC").

1. In 1996, DoCS was responsible for the Kanangra Centre, which had about 150 clients, whose average age was 40 - 45. There are approximately 5 separate residential units within the Kanangra Centre. The Centre is staffed by a medical officer, psychologist, trained nursing staff with differing specialities, social educators, cooks, orderlies, cleaners and other people holding necessary qualifications for the purposes of such a residential centre. It has a number of carefully prepared activity programs as well as programs to try and assist residents to re-enter the outside community. Courses are taught, for example, enabling clients to shop, to cook, to carry out domestic duties and to learn associated skills required for everyday tasks in the community. The prevailing policy is one of "normalisation", that is, the preparation of people so that they may be placed back into the general community as quickly and effectively as possible. This will include, where financial support is available, finding accommodation either in group homes or in other suitable accommodation, having regard to the particular client's needs.

1. The process of initial assessment and treatment at Kanangra may be briefly described. When a new resident is admitted to Kanangra, he or she must first go to Unit 3 for assessment. This unit has the highest client to staff ratio, and is where the most skilled and experienced staff work. In general, clients who remain at Unit 3 have a higher level of disability, combined with a range of difficult and challenging behaviours. In 1996, Unit 3 had about 17 clients. Unit 3 was (and is), as I have described, a "secure unit". Clients cannot leave the building unless the door is unlocked by staff. In addition, clients cannot move freely within Unit 3. Staff have to be asked for permission to enable internal doors to be unlocked, so that clients may pass from one area to another.

1. Unit 2 is and was, during the relevant period, a secure unit in the sense that the external doors and gates were locked at all times. Keys to Unit 2 were held by staff members working in that unit. Clients, however, were able to move freely between the day room and the yard, although staff were still required to unlock doors as requested. Unit 2 had a large backyard, with a veranda and outside sitting area overlooking it. In 1966, Unit 2 had approximately 33 clients, including about 10 women and about 23 men. Sleeping arrangements were dormitory style, segregated by sex, and dorms were portioned into groups of 3 to 4 beds to provide some degree of privacy. In about 1999, Unit 2 was renovated and became "apartmentalised" to further improve privacy for clients.

1. By comparison, Unit 10 was not a secure unit. The doors and gates to the yard were always open. Ms Darcy, for example, would often visit her boyfriend, Bill Troutman, who was in Unit 10. They were able to conduct intimate relationships in his room at Unit 10. Ms Darcy had to ask permission from staff to go into Unit 10 but, in practical terms, she was able to go there freely.

1. There was a further cottage in the grounds known as Koala Cottage. This was cottage number 5. It was not a secure unit. Clients there could leave the cottage at will, but were expected to tell staff where they were going and for how long. Cottage 5 had about 6 clients in 1996. Ms Darcy was there for some time but, as I will indicate, when examining the history of her stay at Kanangra, serious behavioural problems on her part led to her being sent back to Unit 2.

1. Ms Tranter gave evidence (Blue, 47) that if a client in any unit or cottage wanted to leave Morrisett, and expressed such a request to staff, there would generally be a preliminary discussion with the client as to the reasons why they wished to live elsewhere. If the client was adamant, the staff would then arrange to contact the Office of the Public Guardian to see whether arrangements could be made for the client to live elsewhere. The Public Guardian generally had the exclusive power to determine where persons subject to its control should live. The Public Guardian would then visit and talk to the client and liaise with the client's DoCS Case Manager. Ms Tranter said (Blue, 48):-

The Kanangra Centre cannot, would not and has not discharged a client without alternative accommodation being in place.

(I shall later examine in more detail the role and function of the Public Guardian as provided for in the Guardianship Act 1987. It is sufficient at present to note that, in cases such as the present, the public Guardian had the power, if it wished to do so, to demand that the client be released from Kanangra forthwith, and placed in alternative accommodation.)

1. It is necessary now to record the history relating to the Public Guardian's developing attitude towards Ms Darcy's stay in Kanangra. I will trace in some detail the position as it developed between the date of her admission to Kanangra during 1996 and through to 1998. I will also detail the position from 1999 to 2002, but in less detail.

1. It seemed to be accepted both by DoCS and by the Public Guardian that Ms Darcy had been ordered by the Local Court to reside at Kanangra for a period of either 2 or 3 months. The Magistrate's order (as it was in evidence before the primary judge) did not, however, refer to any particular period of time. There may have been discussion in Court about the likely term of her stay but, if there were, it is not reflected in the order.

1. A convenient starting point for an analysis of the attitude of the Public Guardian is the note made on 8 July 1996 by Patrick McEvoy (Blue, 65). Mr McEvoy, as I have said, was the Guardian directly responsible for Ms Darcy at the time of her admission to Kanangra. In this note, he says:-

Telephone call to Alison Bate... Alison informed me that there would be a meeting to develop a plan for Joanne, this will be held with a number of professionals from the DoCS team on 15 July. The only outcome of the court case was Joanne was ordered to reside at Kanangra for 2 months because of her current state of aggression. The problems are historical, are to do with lack of funding that this [is] why there has been a delay in the programming and transition into the community. The TRU are going to become involved in early September, the earliest date that they can do an assessment... I finished up by encouraging Alison to give me an update after the meeting on Monday 15 July and she was happy to do that.

1. The records are incomplete, and there are no further notifications as to the situation until further correspondence passed between staff at Kanangra and Mr McEvoy. It was clear, however that the Public Guardian was well aware from the date of the Court order that Mr Darcy was in Kanangra and that she was being assessed while in Unit 3 and then transferred to Unit 2 (Blue, 336, D - E).

1. There is a document headed, "Master Plan" (Blue, 80), which had been prepared by staff at Kanangra Centre, relating to Ms Darcy. It is dated 12 October 1996. It states its primary goal as "successful reintegration with the community" and its objectives as "maintain her current living skills". The document has further detail in each of these areas, for example, details of proposals to take Ms Darcy "shopping" with the Case Manager and to provide training for skills such as "cooking, computers, work experience, numeracy, sport, craft, tap dancing and swimming".

1. The participants in the preparation of the Master Plan included Patricia Davidson from the Office of the Public Guardian.

1. On 16 December 1996, a letter jointly signed by Jeannette Deaves, Michelle Brown (Case Manager) and Catherine Adams (Senior Program Coordinator) was sent to Patrick McEvoy. The signatories, as I understand it, were all employed by DoCS. The letter states (Blue, 81 - 82):-

Dear Patrick,

We are writing to express our concerns with Joanne remaining at Kanangra Centre. As was discussed at her recent ISP meeting, we feel that she is currently placed in an environment where she is exposed to many challenging behaviours. This is leading to an increase in Joanne's repertoire of aberrant behaviour. She is currently displaying the following behaviours on a daily basis:

* confabulating stories

* manipulation through stand over tactics

* manipulation through sexual behaviour

* refusal to participate in unit activities

* teasing of other consumers

* sulking

* hypochondriacal behaviour

* poor personal hygiene

* medication refusal

Of perhaps greater concern in the emergence of self injurious behaviours and refusal to eat. Joanne has had many unexplained bruises on her arms and legs. She was recently witnessed by staff to inflict these injuries on herself. Joanne has also had recent periods of refusing to eat. She keeps a record of her weight loss and is aware that she has reduced her weight from 100kgs to 73kgs since admission. Joanne has also been observed to be adopting the rituals of other clients, at times engaging in behaviours such as rocking. She appears to be increasing her behavioural repertoire with a number of behaviours learnt from her environment.

Unit two has a large number of clients functioning in the severe level of intellectual disability. There are only three other clients in the unit in the mild range and thus there is no appropriate peer group for Joanne to relate too [sic]. She is very young to be placed in a large residential centre and this experience can only be detrimental to her existing community living skills. It seems incredible that the department is unable to find more appropriate placement for this young woman. We urge you to push the application for special funding to the directorate. It is inconceivable that [there] is no more appropriate placement for this young woman.

Yours sincerely,

Jeannette Deaves, RN, A/Nusing Unit Manager

Michelle Brown, RN, Case Manager

Catherine Adams, Senior Programme Co-ordinator

1. On 7 January 1997, Mr McEvoy wrote to Mr Graeme Smith, the Director of Programming of the Department of Ageing and Disability, asking the Department to review the application that had been made for recurrent funding on Ms Darcy's behalf. The letter is under the signature of Mr Le Breton, the Director of the Office of the Public Guardian. I shall set out the terms of the letter in full (Blue, 85 - 86):-

Dear Graeme,

Re: Joanne Darcy

DOB 27/05/77

The Public Guardian is writing to endorse and support the submission for recurrent funding for Ms Darcy originally forwarded to the Ageing and Disability Department in April, 1996.

As you are no doubt aware, the Public Guardian has been Ms Darcy's allocated guardian since the 28 March, 1996. The Public Guardian strongly supports the submission presented to your department by the Department of Community Services - Mid North Coast Area Office. The Public Guardian recognises the degree of correspondence between the Department of Community Services and Ageing and Disability regarding Ms Darcy's case, and the Public Guardian has actively been involved in, and monitored the progress of this case.

The Public Guardian would like to endorse the concerns expressed by the Department of Community Services in relation to Ms Darcy's case. The Public Guardian would also like to highlight the deterioration which has occurred in Ms Darcy's circumstances since the decision not to fund and this places her at increased risk.

* Ms Darcy is still residing at Kanangra Centre (as stated in the letter of the 27/6/97 from DoCS, Mid North Coast Area Office). Even though due for discharge on 22/8/96, the resources and support services needed to support Ms Darcy in the community were not available and her discharge has therefore been postponed indefinitely,

* the Public Guardian endorses the risks and serious concerns for Ms Darcy remaining in Kanangra Centre indefinitely as detailed in the report enclosed from the Professional Team at Kanangra Centre,

* these reports have been confirmed on subsequent visits by Public Guardian representatives to Kanangra Centre, in discussions with Ms Darcy, the Professionals at Kanangra and through attendance at the Individual Support Plan Meeting for Ms Darcy (attended by Kanangra Staff, representatives from DoCS - Mid North Coast Area Office and the Public Guardian),

* agencies involved in supporting Ms Darcy have established a number of initiatives which are in place in recognition that Ms Darcy is inappropriately placed at Kanangra, such as, making a referral for her to be considered for group home placement (unlikely unless accompanied by funding).

Given the very serious concerns for Ms Darcy's well being, the Public Guardian would request a further formal review of the submission for funding. The Public Guardian requests to be advised of the outcome of this review and the criteria for the decision.

Yours Sincerely,

John Le Breton,

Director

1. Mr McEvoy then sent a fax to Mss Deane, Brown and Adams. He said (Blue, 87):-

Hi Jeanette, Michelle and Catherine

Just a brief note to let you know I have written to ADD (sorry about the delay) enclosing your support letter (thanks heaps for your letter, it was extremely well written).

I am enclosing a copy of the letter I wrote to ADD yesterday (even though it is signed by John Le Breton as a matter of protocol).

Anyway, there it is. I'll see or speak with you closer to the hearing.

Take care,

Cheers

Patrick

1. On 23 March 1997, Mr Smith responded on behalf of the Department to the Director of the Office of the Public Guardian, stating (Blue, 90):-

Thank you for your recent letter supporting the reconsideration of a submission for recurrent funding for Ms Joanne Darcy. This submission was originally forwarded to the Ageing and Disability Department by the Mid-North Coast Area Office, Department of Community Services, in April 1996.

At present, there is no recurrent funding available under the Disability Services Programme. Further, there has been no indication that additional recurrent funding will be forthcoming in the 1996/1997 financial year.

This advice was included in the Ageing and Disability Department's response to the Mid-North Coast Area Office dated 26 June 1996, in which the Department stated that due to the lack of availability of recurrent funding, it could not provide for Ms Darcy's long term support needs. Unfortunately, the position in relation to recurrent funding still stands.

1. The letter concluded with the rejection of an alternative application that had been made for a one off funding for the provision of 6-month accommodation to enable Ms Darcy to live in the community independently. Mr Smith stated that the Department had reconsidered this part of the submission but concluded that it would be "inappropriate" to provide one-off funding for the temporary support of Ms Darcy. His letter, in this regard, concludes:-

Although Ms Darcy's place at Kanangra does not constitute the most appropriate placement, it is nevertheless in accordance with the court order that Ms Darcy reside at a residence designated by the Department of Community Services. The Ageing and Disability Department would view this option as preferable and less disruptive in comparison to placing Ms Darcy in the community for a 6 month period without the capacity to continue those funding arrangements in the future.

1. It might be observed that this paragraph of the letter appears to misunderstand the order made by the Magistrate in the Local Court in June 1996. It may be a reference (also misunderstood) to the orders which were made by the Magistrate in dismissing the outstanding charges against Ms Darcy in December 1996. The actual terms of the order made on 19 December 1996 were, in each case:-

Charge dismissed. Defendant discharged upon condition that she accept supervision and treatment available to her from DoCS.

(The order, it will be observed, did not purport to continue Ms Darcy's placement at Kanangra).

1. The attitude of the Public Guardian in early 1997 is best seen from a report it made to the Guardianship Board dated 10 March 1997 (Blue, 92 - 94). This report is signed by both Patrick McEvoy and Mr Ramos-Conna. Under the heading, "Temporary Accommodation", there is a note:-

Ms Darcy was ordered to Kanangra Centre by the Local Magistrate in Port Macquarie. Apparently, Ms Darcy will only succeed in being returned to the community if accompanied by a funding package and maximum community support to manage behavioural issues.

Accommodation

The report notes:-

The Public Guardian consented to Ms Darcy returning home to Port Macquarie for Christmas 1996, which was a positive experience for Ms Darcy and Ms Springer (her mother).

The original period which Ms Darcy was ordered to spend at Kanangra Centre was 2 months, this period commenced in late June 1996. The Department of Community Services claims that Ms Darcy cannot return to the community without a supported accommodation package because of the high level of support which needs to be put in place. The Department of Community Services have submitted a submission for a one-off accommodation and support package from the Ageing and Disability Department which was initially unsuccessful. Following Ms Darcy's admission to Kanangra, it was felt that her circumstances had deteriorated, and thus the Public Guardian and Kanangra Centre requested the submission be reviewed, this was again unsuccessful (see enclosed letter from ADD received on 3 March 1997).

1. The Report continues:-

The Public Guardian realises that Kanangra is not an appropriate accommodation setting for a range of reasons outlined in the copies of reports submitted with this report. Thus one of the Public Guardian's priorities is to advocate for Ms Darcy to be placed in a more appropriate setting which is not institutional... The Public Guardian has, and will continue, to advocate for Ms Darcy to be returned to the community, with the appropriate support services in place... The Public Guardian perceives its role as continuing to liaise with the appropriate services to ensure this occurs as soon as possible. (My emphasis)

Currently, Ms Bate... is in the early stages of organising for Ms Darcy to have regular 'at home' respite (with her mother in Port Macquarie) following a successful trial during the Christmas period.

(I interpolate to observe that the question of "advocacy" is central to an understanding of what it was the public Guardian undertook to do, and what in fact it did on the appellant's behalf over the next few years. This understanding, as will be seen, is critical on the issue of the Public Guardian's consent.)

1. On 10 March 1997, the Guardianship Board met and determined to adjourn the matter for 2 months so that Mr Ian Mussatt (Area Manager, Department of Community Services) and Mr Graeme Smith be asked to attend the next hearing of the review. The Board noted (Blue, 97):-

Whilst Ms Darcy is well cared for at Kanangra Centre it is highly inappropriate that she remain there. It was genuinely believed by all persons present that if Joanne continues to reside at Kanangra Centre she will lose some of her domestic skills and her behaviour may well deteriorate. All persons were in agreement that Ms Darcy needs to return to the local community as it is clearly inappropriate and against Department of Community Services policy that persons remain institutionalised, especially as Ms Darcy has never been institutionalised in her life...

1. It should be noted that a number of the people from Kanangra, including Sister Neaves, the Case Manager and the Activities Training Centre manager were present at the Board meeting and supported the recommendations that led to the adjournment of the application.

1. As it happened, neither Mr Mussatt nor Mr Smith were able to attend the next Guardianship Board meeting on 3 June 1997. Mr Mussatt (on behalf of DoCS) wrote a letter to Mr Ramos-Conna on 16 May 1997 explaining why it was he could not attend the meeting. There were a number of topics in Mr Mussatt's letter which do not require repetition. Generally, however, he stated (Blue, 98):-

As I explained in our telephone conversation, Jo is welcome to return to Port Macquarie when recurrent funding is available to support her needs. The Department operates a supported accommodation service... and we would envisage Jo being supported by that service, which commenced as a result of the "300" supported accommodation program. Without funding, Jo's needs for support cannot be met. I understand the Department of Housing will allocate Jo accommodation when her return is imminent... I appreciate the concerns you raise, however, our past experience with Jo demands certainty for her support before she is able to be provided by [sic] Department of Community Services support.

1. On 3 June 1997, the Guardianship Board made orders continuing the Guardianship in the same terms as the orders that had been made in 1996. In its reasons for decision (Blue, 102), the Board stated:-

The Board reappointed the Public Guardian as Ms Darcy's guardian for a period of 12 months to make decisions on her behalf about her accommodation, healthcare, medical and dental treatment and services as set out in the Board's order and subject to the conditions and recommendations contained therein.

1. In the body of its report, the Board noted that although Mr Smith did not attend the hearing, he had taken the trouble to return the Board's call, and had discussed the matter by telephone. The various discussions were described in these terms (Blue, 105):-

[Mr Smith] stated that all recurrent funds are committed and expressed his unwillingness to advise the Minister that one-off funding should be made available in circumstances where there is no capacity to provide a permanent arrangement when the one-off funding runs out. He said that he would be happy to look at another submission but he was clearly of the view that there was simply no extra money to be found. Mr Smith suggested that the Department of Community Services may be able to fund Ms Darcy's return to Port Macquarie by reallocating funds from elsewhere within the system.

Mr Ramos-Conna queried the responsibility of both Departments to support Ms Darcy because she is a former Part IX Ward. Ms Durrington said that they could not support her (other than in the Kanangra Centre) without additional funds and Mr Smith said that his Department did not have a direct responsibility to former Part IX Wards, but rather it had a responsibility to fund the Department of Community Services.

While the Board was sympathetic to the resource constraints imposed on both Departments concerned, it agreed with all present that Ms Darcy's continued detention against her will at the Kanangra Centre is inappropriate, unfair and potentially tragic in terms of its long term effect on her ability to lead as normal a life as possible within the community. The Board was strongly of the view that Ms Darcy's welfare and interest can only be promoted by her immediate return to her home town with appropriate support.

The Board was impressed with Mr Ramos-Conna's commitment to achieving this end. It was also impressed with the efforts made by the staff at the Kanangra Centre to provide Ms Darcy with the best possible service while she is at their centre while continuing to advocate for her return to a more appropriate living situation.

1. On 3 June 1997, following this meeting, Ms Learne Durrington, Area Manager for DoCS on the Mid-North Coast, wrote to Mr Ramos-Conna. In her letter, she wrote (Blue, 107):-

Dear Mr Ramos-Conna

Following the Guardianship Board hearing in relation to Joanne Darcy, I would like to clarify the tasks which were agreed to be undertaken by this Department.

* Clarity of responsibility regarding Ex Part IX Wards for both the Department of Community Services and Ageing and Disability Department.

* Department of Community Services to contact Department of Social Security in regard to the Disability Services Panel and her eligibility or otherwise for services developed by that panel.

* Department of Community Services Community Worker to forward a copy of the application for Holiday Respite at Seabreezes, to Office of Public Guardian.

* Community Worker, Alison Bate to contact Joanne Darcy at Kanangra as soon as practical on her return to duties, and also Cheryl Harris, Key Worker.

* Contact to be made with Ageing and Disability Department to once again discuss the possibility of funding for a Key Worker. Outcomes of this discussion will determine preparation, or otherwise of a submission.

* An exit plan for Joanne will be considered following discussion with Departments of Social Security and Ageing and Disability.

I hope this list of tasks is an accurate reflection of what was agreed.

Any information you hold in relation to possible services for Joanne would be usefully referred to the Community Worker, Alison Bate. Finally, if you hold information regarding the implementation of Post School Options services which may clarify information held at Area Office, I would appreciate if you could forward this to the Assistant Manager (Disability), Yvonne Couper.

Not unlike yourself we are committed to ensuring appropriate support and services for Ms Darcy and appreciate your assistance in this regard.

Yours sincerely

Learne Durrington

Area Manager

Mid North Coast Area

cc. Community Worker, Alison Bate

Key Worker, Kanangra, Cherryl Harris

1. Mr Ramos-Conna replied on 16 June 1997, as follows (Blue, 109):-

In response to your letter regarding issues discussed at the recent Guardianship Board hearing, the Public Guardian was seeking from the Department a positive response to enable Ms Darcy to return immediately to live at Port Macquarie.

To this effect, the Public Guardian was trying to explore with you a more lateral approach to resolve the issue, which the Department has in providing services to Ms Darcy.

The Public Guardian therefore was requested that as Ms Darcy has been at Kanangra since 20 June 1996 and by all accounts has made significant changes a total reassessment was needed to be done by the Department. The Public Guardian was hoping that by looking at today's achievements made by Ms Darcy that the old experiences would not be given as much weight as they have been...

The Public Guardian would request that 'respite' be made available immediately, if no immediate long term accommodation is available, by way of using the Department's own group homes or Department of Housing emergency stock, or by way of a private holiday self-contained unit being rented out by the Department for the interim.

The public Guardian requests that a detailed management plan be put to him in the next 14 days outlining the date of Ms Darcy's exit from Kanangra, for consideration and possible consent.

1. It will be seen from this correspondence that Mr Ramos-Conna and Ms Durrington had come to a realisation that the argument previously advanced in order to have Ms Darcy relocated, namely that Ms Darcy's condition was deteriorating at Kanangra, had not been successful. Therefore a change of approach was tacitly agreed, namely that an assessment should be made to enable a report to be put forward that she had in fact made substantial improvements in her behaviour whilst at Kanangra. It was hoped that a favourable report might be seen as a positive argument to enable Ms Darcy to be returned to community living.

1. Unfortunately, events at Kanangra undermined this approach. In the interim, Ms Darcy had been allowed to stay in Koala Cottage for a 3 month period. If successful, the trial would have demonstrated that her behavioural problems had significantly lessened, and this would have paved the way for group living in the community. Unfortunately, the trial failed badly. A report in evidence (Blue, 112, 113) demonstrates that Ms Darcy's behaviour at Koala Cottage was anything but satisfactory and had caused considerable distress to other residents and staff. On 30 July 1997, Sister Cheryl Harris sent a fax to Mr Ramos-Conna in these terms (Blue, 111):-

Dear James,

I have rung several times and left messages so I could update you personally on Joanne. Joanne's 3 month trial is completed and we are recommending that she be transferred back to Unit 2.

I am available to discuss the reasons with you any time over the next 3 days.

Yours sincerely,

Cheryl Harris CNS

1. In August 1997, as I earlier indicated, Mr Ramos-Conna relinquished his role in relation to Ms Darcy and the position was then taken over by Patricia Davidson, Senior Guardian.

1. In the latter half of 1997, and into the early part of 1998, there were continuing efforts to find some type of accommodation suitable for Ms Darcy outside Kanangra. One opportunity that arose related to the Sherwood Road group home in which a vacancy had arisen. At that time, the process for filing a vacancy within the three group homes was determined by the Area Placement Committee. This comprised five members including the Chairperson who was the person appointed by the Minister. When a vacancy arose, all community workers in the area were notified to allow them the opportunity to forward applications for individuals in need of accommodation. Ms Darcy was an applicant for this particular vacancy, but in February 1998 a decision was made awarding the vacancy to another applicant. The correspondence shows that positions such as this arose rarely and that they were sought after by many persons in need of accommodation. It is clear that Ms Darcy's history of behavioural problems did not assist her application.

1. On 16 March 1998, Ms Davidson, in her capacity as Senior Guardian for Ms Darcy, wrote a forceful letter to Learne Durrington, in which she complained about the fact that the vacancy had gone elsewhere and that Ms Darcy remained at Kanangra. Her letter (in part) states (Blue, 114):-

Ms Darcy has been accommodated at Kanangra against her will since June 1996. Ms Darcy was initially placed in institutional care for a 2 months respite period. Her date of discharge was 22 August 1996, Joanne remains in Kanangra against her and her family's wishes, no new contract has been entered into by Port Macquarie DCS and Kanangra. No new consent has been sought for this placement from the Director-General and the Public Guardian has not consented to this extended stay ... Staff at Kanangra have also endorsed the need for Ms Darcy to return to the community. Joanne is not well placed at Kanangra, her behaviour has been stabilised for many years, this can be endorsed by the fact that she regularly travels independently... without any incidents and information from the Kanangra unit in which she resides. [emphasis added]

(This appears to have been the first mention in correspondence to support that there was an absence of "consent".)

1. Ms Davidson, in considerable detail, criticised the results of the allocation of the vacancy at the Sherwood Group Home. She reiterated that "Ms Darcy's needs cannot be questioned, she is held in a major institution against her will, without permission or consent since 22 August 1996". [emphasis added]

1. The letter concludes:-

The Public Guardian after this last unsuccessful application for Ms Darcy to regain a placement in Port Macquarie does not accept Port Macquarie's DCS explanation that Ms Darcy has not returned to Port Macquarie due to funding, and now requests DCS to follow DCS policy and develop a concrete, action structured, written plan for Ms Darcy to return to the community within a 12 week timeframe. The Public Guardian requests that the Director-General be advised and the matter be referred to the Commissioner for Community Services.

1. On 3 April 1998, Ms Durrington replied to Ms Davidson's letter (Blue, 117 - 121). First, Mr Durrington explained in considerable detail the system of allocation where a vacancy has occurred. She detailed the particular process that had been followed in the Sherwood Road allocation and pointed out the basis on which the successful applicant had been preferred to Ms Darcy.

1. In relation to the more general allegations made in Ms Davidson's letter, Ms Durrington made a number of points in reply. These included:

• The circumstances in which Ms Darcy had been sent to Kanangra by the Local Court, and the reason for this.
• The fact that the Director-General had approved and continued to approve Ms Darcy's residence at Kanangra.
• A query as to whether Ms Darcy's behaviour had in fact stabilised at Kanangra, including her placement back into Unit 2 after an unsatisfactory period at Koala Cottage.
• An assertion that the filling of the Sherwood Rd vacancy was not a rejection of Ms Darcy by DoCS but specifically occurred as a result of the Placement Committee's decision.
• A statement that what was required for Ms Darcy was an individualised accommodation support package to meet her complex support needs. In other words, a statement that group living would probably not be likely to work.
• An identification that the central issue was the provision of financial resources necessary to meet Ms Darcy's support needs. In this context, the letter identified the previous applications that had been made to ADD for funding support and that they had been so far unsuccessful.

1. Ms Durrington, once again in considerable detail, pointed out to Ms Davidson the difficulties DoCS had experienced in obtaining the necessary funding from the Department of Ageing and Disability. She deplored the limited financial resources available to DoCS, in particular in the area of Port Macquarie/Taree. The letter stated (Blue, 121):-

In conclusion, I would like to state that I and other DCS staff share your concerns about the continued placement of Joanne Darcy in Kanangra, and the urgent need to return her to Port Macquarie. However, the current placement was one of last resort in lieu of remand and possible sentence to Mulawa Prison by the presiding Magistrate of Port Macquarie Local Court.

This was in the context where a secure placement was necessary to protect not only Ms Darcy's welfare but equally the safety of members of the community.

Whilst it would appear that Ms Darcy's behaviour has significantly improved both within Kanangra and on her short visits to Port Macquarie, it would be negligent to allow her to return home without the appropriate care and support necessary to prevent her entering the criminal justice system.

Such support is contingent upon an external resource enhancement (that is an individual tailored accommodation support package appropriate to her needs) funded by the Department of Ageing and Disability.

1. Ms Davidson then wrote directly to Mr Graeme Smith, the Director of the Department. In her letter of 5 May 1998, she strongly advocated for funding to be made available for Ms Darcy to enable her to live with support at Port Macquarie. She said (Blue, 123):-

Ms Darcy, as stated earlier, has been kept at Kanangra against her wishes since June 1996. She entered this isolated institution as a 20 year old, has spent her 21 st there and is quickly progressing to her 25 th . In previous correspondence received by the Public Guardian, ADD has stated that Ms Darcy was placed at Kanangra in accordance with a court order, this order did not place Ms Darcy into Kanangra but discharged her to attend at Kanangra, no time limit was set. The Public Guardian believes that this order could be responded to by Kanangra by the carrying out of assessments, this has occurred. The court order does not state that Ms Darcy reside at a residence designated by the Department of Community Services. The Public Guardian requests that ADD, by providing a support package to Ms Darcy, create the opportunity and services to allow her to participate in society and have a better quality of life as your goal states.

The confinement of Ms Darcy in this restricted environment will not cease unless some action is taken by all parties involved. The Public Guardian needs DCS and ADD to combine to provide support so that Ms Darcy can return to Port Macquarie. The Guardianship Tribunal has requested that the Public Guardian advocate strongly for Ms Darcy to return to Port Macquarie and the Public Guardian will continue this advocacy until such time as Ms Darcy returns to Port Macquarie.

1. On 4 June 1998, Ms Durrington made a further submission for recurrent funds in regard to the provision of services for Ms Darcy. This submission was made directly to the manager of the Disability Services Program, Department of Ageing and Disability. Ms Durrington, on behalf of DoCS, said (Blue, 124):-

Ms Darcy has recently spent her 21 st birthday in Kanangra. The continuing placement in Kanangra is viewed as being inappropriate, not only by herself and her family, but moreover by staff of Kanangra, Mid-North Coast Area and the Office of the Public Guardian.

The letter asked the Department to favourably support an accommodation package for Ms Darcy to enable her to return to Port Macquarie without placing herself or other community members at undue risk.

1. Ms Davidson provided a report for the next Guardianship Review meeting, scheduled for 15 June 1998. Her report, once again, referred to the historical situation as follows (Blue, 132):-

Ms Darcy currently resides in Unit 2. This accommodation continues to be against her and her family's wishes and without the consent of the Public Guardian... over the last 12 months the Public Guardian has communicated with Port Macquarie DCS... to seek accommodation for Ms Darcy in Port Macquarie.

1. Ms Davidson noted the letter she had sent to Mr Smith requesting funding had not been answered.

1. In the final section of her report, Ms Davidson said:-

The Public Guardian believes that Ms Darcy's needs are not being met by her continued institutionalisation. Ms Darcy has made great progress since she arrived at Kanangra, the reasons for this progress are many, but the most relevant are her maturity, the commitment of the staff at Kanangra and the ability of Ms Darcy to accept that she has no control over her environment.

1. On 15 June 1998, the Guardianship Tribunal renewed the original orders for a period of 3 months. The reasons for this limitation centred upon the various advocacy and other applications that had been made to the Department. The Tribunal expressed its approval that the Department of Community Services had now appointed a senior practitioner, Ms Narelle Henry, to review Ms Darcy's placement. Ms Henry advised the Tribunal that the Department had a commitment to find a place for Ms Darcy in the Port Macquarie region but said the fundamental issue was one of resources (Blue, 139). Ms Darcy would require 24 hour support on a one-to-one basis but this service was not currently able to be provided by the Department. Ms Henry had recently put a support package to the Department of Ageing and Disability Services, but was yet to receive a response. She said that she was hopeful of the outcome and felt that, with the support of the Public Guardian in advocating for Ms Darcy, it was likely that the Department of Ageing and Disability Services would respond favourably to the request for appropriate supported accommodation. The Tribunal noted (Blue, 140):-

Ms Henry also noted that she had not been aware that 'consent' was required for placement. The Public Guardian had made it very clear that they did not consent to Mrs Darcy's placement at Kanangra. This Tribunal looks forward to this issue being clarified and a timetable for an exit plan established. [emphasis added]

1. Following this meeting, Ms Davidson wrote a letter to the DoCS case manager Alison Bate dated 23 June 1998 (Blue, 141):-

Dear Alison,

As you know the Public Guardian was reappointed as Ms Darcy's guardian on 14 June 1998. The Public Guardian has been given the functions of Accommodation, Health Care, Medical and Dental Consents. The accommodation function means that it is a legal requirement that the Public Guardian consents to where Ms Darcy may reside. The Public Guardian has not previously consented to Ms Darcy residing at Kanangra and it is against the Public Guardian's policy to provide consent for a person under guardianship to reside in a major institution unless there is an exit plan in place, the Public Guardian understands that Narelle Henry is currently developing an exit plan. In view of this, the Public Guardian consents to Ms Darcy residing at Kanangra until Monday 17 August 1998.

1. On 24 June 1998, Anna Kalnins, the manager of the Disability Services Program for the Department of Ageing and Disability wrote to Ms Davidson. In this letter, Ms Kalnins endeavoured to explain the difficulty of providing financial support for accommodation for Ms Darcy. The letter noted that all available vacancies within the current program had been allocated. However, the letter gave some encouragement. Ms Kalnins informed Ms Davidson that the Department of Ageing and Disability had recently received additional growth funds for the provision of disability crisis support and accommodation. Priorities for individual funding allocations were "currently being considered by the Department and DoCS" (Blue, 143).

1. On 28 August 1998, Ms Davidson wrote to Ms Valerie Derks, the Acting Assistant Manager for DoCS in the Mid-North Coast area. It seems that Mr Davidson had been frustrated by the absence of a completed exit plan for Ms Darcy and in this letter, she pointed out that the consent given by DoCS on 23 June 1998 had now expired. She wrote (Blue 144 - 145):-

The exit plan that has been developed so that Ms Darcy can return to Port Macquarie has been received by the Public Guardian... the Public Guardian believes the plan should be achievable and not depend on resources that DoCS has no control over. In addition, the securing of funding from ADD could be a component of the plan, but an alternate way to secure Ms Darcy's return to the community must be provided otherwise the plan is not achievable and therefore cannot work in Ms Darcy's best interests...

The Public Guardian does not consent to Ms Darcy being accommodated at Kanangra and requests that arrangements be put in place for Ms Darcy to return to Port Macquarie with support within a 4 week period.

1. On 29 September 1998, the Guardianship Tribunal renewed and varied its orders of 15 June 1998 in relation to Ms Darcy. The order continued guardianship for a period of 4 months from 29 September 1998. Otherwise it imposed the same conditions as in previous orders, with the exception, however, that the previous standard condition 6(b) was omitted (Blue, 136).

1. In its reasons for decision, the Tribunal noted that the Public Guardian had advised that it was seeking a renewal of a current order for a reasonably short period "in order to maintain the momentum around executing an exit plan for Ms Darcy".

1. It is necessary at this point to address the evidence given at trial by both Mr Ramos-Conna and Ms Davidson. This is particularly the case in relation to the issue of the Guardian's consent or otherwise to Ms Darcy residing at Kanangra. It is necessary first to draw a distinction between respite accommodation and permanent accommodation. The point is made in paragraphs 12 to 18 of Ms Davidson's affidavit dated 24 February 2010 (Blue, 193 - 194).

1. The Public Guardian's running notes show that on 19 June 1996 Ms Bate advised that she did not have an alternative placement option for Ms Darcy. She could not return to the flat in view of the fact that she had assaulted her flatmate. Ms Bate candidly revealed that there was simply no longer a contingency plan that would work. Although the Public Guardian had taken the position that it would not consent to Kanangra unless other options had been fully explored, it was next learnt that Ms Darcy was in custody and would be spending the night in goal. There is no entry recording the communications between Ms Bate and the Public Guardian immediately after the Court Appearance and the subsequent Court Order. There is no reason to suppose, however, that contact was not made with officers of the Public Guardian to inform them what had happened. It must have been apparent to all, as it was to the local Magistrate, that it was either Kanangra, where appropriate treatment was available, or Mulawa Women's detention centre.

1. Patrick McEvoy spoke to Alison Bate on 8 July. It is clear from this communication that the Public Guardian was well aware that Ms Darcy had been ordered to attend Kanangra and had in fact been residing there during the last week of June and the early part of July. Discussion between Ms Bate and Mr McEvoy proceeded on the basis that there were to be future assessments at Kanangra and decisions made concerning Ms Darcy, including her medical treatment. For example, there was a discussion about the need to increase her medication. These was also a discussion about her behaviour management. Both parties appear to have assumed that the Local Court Order was operative for 2 months "because of her current state of aggression". There was, however, no suggestion that Mr McEvoy asked at any time for Ms Darcy to be released forthwith. The two month period following the Court Order came and went. Ms Darcy remained at Kanangra after that time, clearly with the approval of the Public Guardian.

1. This position was maintained throughout the remainder of 1996. The Master Plan prepared on 12 October 1996, for example, had been formulated with the participation of a number of staff from within Kanangra and with the assistance of Ms Davidson from the Public Guardian. It can be safely said that, well after the initial 2-month period, the Public Guardian was fully aware of the assessments that had been made in relation to Ms Darcy. It knew of the treatments that she was receiving and was aware of the proposals for future treatment and training she was to receive at Kanangra to enable her eventual reintegration back into the community. There is no doubt that all concerned wanted to see this achieved. But equally, there can be no doubt that the Public Guardian was well aware of her continued residence at Kanangra and made no demand that she be required to leave. It can also be safely assumed, from the involvement of Ms Davidson in the preparation of the Master Plan, that she accepted that Ms Darcy should, at least for the time being, continue to reside at Kanangra. The Master Plan recognised that "Joanne would like to go to live in the community, Port Macquarie preferably." (Blue 80). The acceptance by Ms Davidson of Ms Darcy's remaining at Kanangra as respite placement (that is, on a temporary basis) was plainly arrived at after taking into account Ms Darcy's wish to live in the outside community.

1. The next major sequence of events occurred in December 1996 when Ms Deaves, Ms Brown and Ms Adams wrote to Patrick McEvoy expressing their concerns regarding Ms Darcy remaining at Kanangra. The letter urged Mr McEvoy to "push" the Department for special funding to enable Ms Darcy's return to the community.

1. It is significant that, far from the Public Guardian demanding that Ms Darcy be released from Kanangra at the end of 1996 and the beginning of the following year, it was the staff of the institution who were taking the initiative to have the Public Guardian institute advocacy on Ms Darcy's behalf. This tends to confirm that, during that period, there was an acceptance on the part of the Public Guardian that she should continue to reside and be treated at Kanangra, at least on a respite basis.

1. It is not without significance that Mr McEvoy in his letter (signed under the name of the Director) records that Ms Darcy had been "due for discharge" in August 1996, but that the financial resources to enable her support in the community were not then available and "her discharge has therefore been postponed indefinitely". There is no suggestion in Mr McEvoy's letter of any demand being made to the Department (or for that matter, DoCS) that Ms Darcy be required to leave Kanangra forthwith. The request is simply for funding. There is no suggestion, or even contemplation, that she should exit Kanangra without funding. To the Public Guardian's knowledge, she had been at Kanangra for over 7 months at the time of this correspondence. Indeed, in a very real sense, the correspondence confirms an acceptance of her remaining there, at last for the time being.

1. Acceptance of the residential status quo is further to be seen in the letter written by Mr McEvoy to the three staff members at Kanangra who had prompted him to write to the Minister on Ms Darcy's behalf. It is also to be observed that the (no doubt disappointing) reply from the director on 25 February 1997 did not elicit a demand for Ms Darcy's release. The Public Guardian's report to the Board on 10 March 1997 simply observed that Ms Darcy would "only succeed in being returned to the community if accompanied by a funding package and maximum community support to manage behavioural issues". This entry appears under the heading "Temporary Accommodation". The summary of the Public Guardian's views on accommodation reveals that it was contemplated that there would be a resumption of continued advocacy for Ms Darcy to be returned to the community. However, there was not the slightest suggestion that the Public Guardian contemplated asking that she be returned to the community at that point. The records indicate a continued acceptance that she should remain there while attempts were made to secure a more appropriate non-institutional placement. The report also acknowledged the approvals that had been given by the Public Guardian for Ms Darcy to have regular "at home" respite with her mother in Port Macquarie. These tacitly accepted her continued residence at Kanangra and the requirement that she should return there at the end of each contemplated domestic sojourn.

1. The Board meeting on 10 March 1997 was held at Kanangra. Patrick McEvoy was at the meeting as were the relevant staff from Kanangra. This meeting was later adjourned to enable Mr Mussatt and Mr Smith to attend the next guardianship meeting on 3 June 1997. The records show that both Mr McEvoy and Mr Conna were well aware of Ms Darcy's situation, But again no attempt was made to do other than to allow Ms Darcy to remain at Kanangra on a temporary basis while various manoeuvres were undertaken to see whether her release could be secured. The June meeting of the Board took place at Kanangra when, after considerable discussion, the Board ordered an extension for a further 12 months. Ms Darcy was at this meeting as was Mr Conna. Also present were a number of the treating staff from Kanangra. It was clearly the wish of all present at the meeting that Ms Darcy should be returned to Port Macquarie as soon as possible. However, the reasons for this not being presently possible were explained and generally acknowledged. Mr Smith was spoken to by telephone. He indicated that all the current funding was presently committed. No extra money was available at that time. Nevertheless the Board remained strongly of the view that Ms Darcy's welfare could only be promoted by her "immediate return" to her home town with appropriate support. It seems that, once again, the Public Guardian accepted Ms Darcy remaining at Kanangra on a temporary basis while further efforts were to be made during the ensuing 12 months to obtain funds to provide for her relocation in the community. This is confirmed by the subsequent correspondence which passed between Ms Durrington and Mr Conna in June 1997. Indeed, in his letter on 16 June 1997, Mr Conna devised a new approach. This was to obtain material that might suggest that substantial improvements had been made in Ms Darcy's behaviour while she was at Kanangra. Mr Conna contemplated that this "change" in her behaviour might lead to a wider range of community housing becoming available. Unfortunately, this new approach quickly failed. Ms Darcy's aberrant behaviour, which led to her being taken from Koala Cottage and moved back to Unit 2, left Mr Conna's plans in complete disarray.

1. Mr Conna continued with his efforts on Ms Darcy's behalf through the early part of 1998. He was then replaced, as I have earlier stated, by Ms Davidson. She took over as senior guardian for Ms Darcy during the first half of the year. It is clear, from Mr Conna's evidence, as a whole, that, while he devised one form of tactic or another in his endeavours to "coax" the Department into allocating funds for Ms Darcy, he did not consider that, during his time, Ms Darcy was being held against her will or as he said, more importantly, she was not held against the will of the Public Guardian while she was at the centre [para 21 Conna affidavit: see para [102] above]. His correspondence, he pointed out, was part of an advocacy campaign on her behalf. Mr Conna recognised that a request from the Public Guardian that Ms Darcy leave Kanangra would have, in effect, put her out in the streets where she ran a very high risk of being incarcerated. He freely conceded that the Public Guardian itself could not fund accommodation for her or provide accommodation to her. In his own words, he recognised the reality, namely that "there was no other place where Ms Darcy could be accommodated."

1. Mr Conna expressed the opinion that Kanangra was the most appropriate placement for Ms Darcy "in the circumstances", even though it was not ideal. He maintained that the use of the word "consent", in his and Ms Davidson's correspondence, should not be seen as a reference to the Public Guardian not agreeing to Ms Darcy being at Kanangra.

1. Ms Davidson, it must be said, conducted a more aggressive campaign than had Mr Conna. Right from the outset, her advocacy centred upon an insistence in correspondence and meetings that the Public Guardian had not "consented" to Ms Darcy being at Kanangra. It is clear from Ms Davidson's evidence that she used the "lack of consent" theme as a tactical weapon to "frighten" the Department into more rapidly finding funds to allocate to Ms Darcy's case. Her evidence, however, demonstrated that she would not have consented to Ms Darcy leaving Kanangra unless appropriate accommodation were available for her. It is to be inferred that she, like Mr Conna, would not have consented to Ms Darcy moving out of Kanangra and being put in a boarding house. Nor would she have agreed to other accommodation without 24-hour care.

1. In paragraph 17 of her affidavit [see 95 above], Ms Davidson made it clear that she "had no option but to allow Joanne to remain at Kanangra". Ms Darcy was "required to be there so that her welfare and safety could be ensured and her daily needs met". In that sense, it seems quite clear that Ms Davidson, who had a long period of responsibility for Ms Darcy's accommodation, despite her misgivings, tacitly agreed to Ms Darcy remaining at Kanangra throughout 1998 and 1999. It is fair to say that thereafter the Public Guardian never disengaged from this position of tacit approval. With its public face, the Public Guardian continued to assert that no consent had been given but, in reality, it permitted Ms Darcy to remain at Kanangra while the battle for funding continued.

1. The position changed at the end of 1998 following the grant of funding. Of course, it was to be a number of years before Ms Darcy was finally moved to her own home at Wauchope. However, the tone of the Public Guardian's advocacy subsided somewhat with the prospect of community placement for Ms Darcy. The process moved slowly but inexorably to its fulfilment. In all other respects, nothing much changed between 1998 and 2002. The Public Guardian, continued its tacit acquiescence in Ms Darcy remaining at Kanangra while, at the same time, prompting the Department to resolve the bureaucratic and financial problems that arose during this last period of her residence at Morrisett.

An Assessment of the Evidence

1. It is my view, as I have said, that the lengthy and detailed process outlined in the evidence, when examined carefully, demonstrates that the Public Guardian by its actions provided justification in law for Ms Darcy's continued residence at Kanangra as respite accommodation. In summary, this emerges from the following matters:

(1) The Public Guardian had the power to determine where Ms Darcy should reside. It had no need to make a determination in 1996 at the time Ms Darcy was sent to Kanangra because of the orders made by the local Magistrate.

(2) While it is true that the Public Guardian never made an express determination that Ms Darcy should live at Kanangra, it is clear that it did not determine that she should live elsewhere. The Public Guardian was the only body which could make such a determination. It could not be said that she was homeless for 61/2 years.

(3) The Public Guardian throughout the years 1996 to 2002, while publicly advocating that she should be released from Kanangra, never required that she leave forthwith. Indeed, for the reasons given in the evidence, it would never have done so, recognising as it did the danger of harm to Ms Darcy, and perhaps to others. It recognized the very real possibility of her behaviour leading to her custodial confinement. There was a recognition and acceptance that, pending her return to the community, Kanangra, while not ideal, should be her place of residence. She was, in that sense, allowed to reside there.

(4) The Public Guardian provided consent for each and every occasion when Ms Darcy left Kanangra for holidays, visits to the family or for other reasons. Each of these consents was given on the basis that Ms Darcy would be required to return to Kanangra at the end of the trip.

(5) The complexity of facts surrounding the advocacy of the Public Guardian on her behalf through those responsible, namely Mr Conna and Ms Davidson, show that each accepted her staying at Kanangra on a temporary basis, while at the same time, continuing with overtures for funding that would enable her to leave. In particular, Ms Davidson raised the consent issue as a tactical weapon to persuade the Department into moving more promptly into the allocation of funds upon Ms Darcy's behalf.

(6) The evidence of both Mr Conna and Ms Davidson reveals that, in truth, the Public Guardian did at least tacitly consent to her remaining at Kanangra, provided that she remained there on a temporary basis and not as a permanent resident. There was a common understanding between DoCS and the Public Guardian that Ms Darcy's residential status, however undesirable, should remain as it was while efforts were made to return her to the community.

1. For these reasons I would find that the appellant has failed to make out the tort of false imprisonment against the respondent and I would uphold the principal Order made by the trial Judge.

Matters unnecessary to decide

1. There are two areas where it is unnecessary to decide arguments that were touched upon during the taking of submissions. The first is the issue as to whether the so called doctrine of necessity justified the detention of the appellant. In general terms, the common law does not confer upon a private individual or an institution the power lawfully to detain, in a situation of necessity, a person of unsound mind who is a danger to himself or others. However, there is a power to impose a temporary restraint on a person who "has run amok and is a manifest danger either to himself or to others" ( B v Forsey (1988) SC HL 28 per Lord Keith at 63, Lord Griffiths at 68).

1. An argument was advanced by Dr Birch SC that the doctrine of necessity has no application in this State because the detention of mentally disabled people in hospitals in NSW is governed by the provisions of the Mental Health Act 1990. Dr Birch SC argued that there is simply no scope for the operation of any common law doctrine of necessity so as to permit someone to be detained in a hospital or treatment centre other than under the provisions of the Mental Health Act 1990.

1. This difficult question need not be resolved in the present matter. This is so because of the findings I have made in relation to lawful justification. In any event, however, it could not be said that the doctrine of necessity could possibly extend to permit the detention of a person for the period of time Ms Darcy was kept at Kanangra. There is no authority that would allow such a lengthy detention.

1. The second issue is whether the decision in State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 was wrongly applied by the trial Judge. Once again, in view of the primary finding I have made, it is unnecessary to resolve this aspect of the dispute. In any event, his Honour merely used the decision as an analogy and it formed no critical part of the reasoning process that led to his Honour's conclusion.

Damages

1. I do not accept Dr Birch SC's submissions that the trial Judge fell into error in assessing damages in the sum of $100,000. In my opinion, the contingent damages assessed fell within a reasonable range and should not be disturbed. Moreover, I consider his Honour was correct to find that this was not a case that called for either aggravated or exemplary damages.

1. Aggravated damages are awarded to compensate a plaintiff for increased suffering due to the manner in which the defendant has behaved in committing the wrong. It has been said that aggravated damages are intended to compensate the injured plaintiff because the more reprehensible the wrongdoer's conduct the greater the indignity the plaintiff suffers and the greater the outrage to his feelings ( Uren v John Fairfax and Sons Pty Ltd (1966) HCA 49; 117 CLR 118 per Windeyer J at 151)

1. In Australian law, an award of exemplary damages is intended to punish the defendant and also to deter the defendant, and others, from behaving in the same or similar reprehensible manner. The objects of such an award encompass condemnation and admonition of the defendant and his behaviour. The purpose of damages of this kind is to mark out the court's strong disapproval of the conduct and to visit retribution on the person thus sanctioned. It also embraces the notion that such an award will assuage the victim's potential desire or need for revenge and thus avoid any temptation to engage in self-help likely to endanger the peace. Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8-13; Uren v John Fairfax and Sons Pty Limited [1966] HCA 40; 117 CLR 118 at 138; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNexus Butterworths [7.2] at 98-99.

1. The type of conduct that will attract an award of exemplary damages has been described as "conduct showing a conscious and contumelious disregard for the plaintiff's rights"; XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 at 472 per Brennan J. It has plainly been recognised in cases where trespass to the person has been alleged against police officers who have been shown to have acted in a high-handed and contumelious fashion: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78; Knight v State of New South Wales [2004] NSWSC 791 per Hoeben J.

1. In Lamb v Cotogno , at 8, the High Court cited with approval the following passage from Mayne and McGregor on Damages , 12 th ed (1961) Sweet & Maxwell.

"[Exemplary damages] can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights."

1. In my opinion, the conduct of DoCS in the present matter did not call for an award of damages on either of these bases. The trial judge did not fall into error in this regard.

1. I proposed that the appeal be dismissed with no order as to costs.

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Decision last updated: 21 December 2011