Office of the Public Guardian v Department of Queensland Health, Office of the Chief Psychiatrist - [2017] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

Office of the Public Guardian v Department of Queensland Health, Office of the Chief Psychiatrist & Anor [2017] QSC 193

PARTIES:

THE OFFICE OF THE PUBLIC GUARDIAN OF QUEENSLAND

(applicant)

v
DEPARTMENT OF QUEENSLAND HEALTH, OFFICE OF THE CHIEF PSYCHIATRIST

(first respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES
(second respondent)

FILE NO/S:

6420 of 2017

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

1 December 2017

DELIVERED AT:

Brisbane

HEARING DATES:

23 June 2017, 27 June 2017, 30 June 2017, 11 July 2017, 26 July 2017, 2 August 2017 and further written affidavits and submissions up to and including 17 November 2017

ORDER:

Application dismissed.

JUDGE:

Dalton J

COUNSEL:

SE Seefeld for the applicant

J Tate for the first respondent
NV Weston for the second respondent

SOLICITORS:

Office of the Public Guardian for the applicant

Crown Law for the first respondent
Crown Law for the second respondent

Mental Health Court Reference

On 20 June 2017 I heard an uncontested (20 minute) matter in the Mental Health Court. The reference was in relation to relatively minor offending between March and November 2016. The subject of the reference was 23 years old. I will call him N. He is a slight lad who looked much younger than 23. He had what is termed a prejudicial childhood. I am not sure that this is an area where comparisons are valid, but I cannot recall a matter involving worse neglect and abuse than this young man suffered.[1] During the time he lived with his natural family, they were constantly moving and living rough – the aim apparently being to defeat the efforts of government agencies who wished to monitor, eg., the children’s welfare. Perhaps as a result of this, he “does not like treatment and chooses not to engage with supports …”.[2]
[1] See the description in the report of Dr Kulatunga, 4 May 2016.
[2] ibid.
The doctors who have examined N over the years have had different views about whether or not he suffers any mental illness or disorder of personality, or whether his behaviour is just aberrant because of the experiences he has endured. His case was described as “confounding”. It seems he has an intellectual disability and he has a diagnosis of “psychotic disorder not otherwise specified”. This is a vague, “catch-all” diagnosis, and possibly reflects the doctors’ inability to satisfactorily diagnose N. The doctors treating N did not think that this psychosis was very relevant to his behaviour at the times I am concerned with.[3]
[3] See [27]-[37] below.
I found that N was permanently unfit for trial in relation to the offending which was before the Mental Health Court.[4]
[4] That decision is published as [2017] QMHC 9.
N appeared by video link from the Bundaberg Hospital in the company of a forensic liaison officer (FLO). After having made my findings on the Mental Health Court reference, I thanked N for his attendance, at which point the following occurred:
“DEFENDANT: I’ve been at the hospital for 220 days now. I’ve been at the hospital for 220 days, eight months.
[FLO]: So what’s your question, [N]?
DEFENDANT: My question is am I at least allowed to go on bail and go for a walk?
[FLO]: Okay. [N] has actually been in hospital for the last 220 days as a classified patient and under classified provisions has not had any leave available, and what he’s asking is basically can he get leave. So I’ll explain the provisions of what he will be able to do once the classified status finishes up, which is after this hearing today. That’s my understanding, anyway.”[5]
[5] Transcript of hearing 20 June 2017, t 1-9.
This provoked enquiries by me which in fact took longer than the hearing of the matter in the Mental Health Court. In the course of that, the FLO said:
“It is totally – you know, it’s been a shame that it’s taken so long. We also had another matter last year of a very similar case that – and it’s basically taken a year and a-half to actually get the man transitioned into a suitable facility with the necessary supports in place to allow him to progress out of an acute inpatient unit, which is – and, you know, prior to – prior to this hearing, you know, without bail, being on a classified status, then progressing to leave to any of these facilities was not legally possible.[6]
…
[FLO]: Your Honour, if I might add that my understanding – we recently had a memo from the Chief Psychiatrist re-emphasising the fact that leave for classified – classified clients was only available at the maximum of escorted leave on the grounds of the facility anyway. Like, there was no – there is no provision for leave for a classified patient off the hospital anyway prior to this.
HER HONOUR: Right. Well, I---
[FLO]: And we have – I’m sorry. And one of the reasons we hadn’t progressed it was the fact that there was no suitable plan in place that would’ve provided for adequate safety.
HER HONOUR: Yes. Well, it’s pretty – it is pretty dreadful.
[FLO]: Yes. We don’t dispute that, your Honour.[7]
…
[FLO]: Your Honour, I was not aware that that was possible because we would’ve looked at that last year with the other gentleman’s case as well. But I had heard from other forensic liaison officers around the state of similar – similar problems faced in other units.”[8]
[6]     Transcript of hearing, 20 June 2017, t 1-13.
[7]     Transcript of hearing 20 June 2017, tt 1-15-16.
[8]     Transcript of hearing 20 June 2017, t 1-16.
Counsel instructed by Legal Aid acting on behalf of N, said that she was not briefed on any matter other than the reference which was before the Mental Health Court. As that was finalised, she withdrew. A solicitor from the public gallery came to the Bar table and appeared as a legal officer of the Public Guardian who act on behalf of N generally. The Public Guardian had found accommodation for N, but there were differences between how the Public Guardian and Disability Services Queensland saw his requirements, so he could not move into that accommodation.
Outstanding Issues
Thus, even though the reference to the Mental Health Court had been finalised, there remained two issues of concern:
(a)     N had been detained in hospital for 220 days. When I began enquiring into this, it transpired that his situation was worse than that; he had been detained in what is called a High Dependency Unit (HDU) for that time. Such a unit is inappropriate for detention for such a time; it is designed for short-term “de-escalation” of patients who are very unwell – see [16], [17] and footnote 10, below. In all that time N had no leave. In four years on the Mental Health Court I can only remember a handful of patients who have had no leave; they have been very dangerous individuals indeed.[9]
From what the FLO said, this was not an isolated incident. And indeed since reserving this judgment, I have heard another case in the Mental Health Court where a young man was detained in an HDU for six months. In that case I made findings that his detention was, at least in part, not justified under the Mental Health Act 2016 which was the applicable legislation.[10]
(b)     N’s detention in hospital after my order determining his reference in the Mental Health Court seemed likely to continue indefinitely, because no arrangement had been made for him to move into community accommodation.
Parens Patriae Jurisdiction
[9]     For example, on 20 March 2015 I authorised escorted leave on the grounds of The Park for a double murderer who until that time had had no leave.
[10] That case will be published as [2017] QMHC 10 when it can be, having regard to s 524 of the Mental Health Act 2000. The advice from the Assisting Psychiatrists in that case was that a HDU is for use for very ill patients usually for a couple of hours.
The Mental Health Court proceedings were finalised. There is a power in the Mental Health Act2016 to enquire into the lawfulness of detention, which enquiry can be at the Court’s initiative – s 673. However, I considered that I might more usefully deal with the matter in my parens patriae jurisdiction and I asked that the parties appear before me in that jurisdiction again three days later.[11]
[11] Before delivering these reasons, the parties were asked to consent to my having regard to the medical reports on the Mental Health Court reference in preparing these reasons. They did consent to that in email correspondence with my Associate.
Unfortunately four further hearings were necessary before I was satisfied that suitable accommodation had been put in place for N. A further hearing was necessary before I received an explanation from the Office of the Chief Psychiatrist as to N’s detention. As the accommodation found for N was satisfactory, and satisfactory arrangements were put in place for his ongoing psychiatric care as an outpatient, it was not necessary that I make any orders. However, the reasons for his detention given by the then Director of Mental Health (since the Mental Health Act 2016, the Chief Psychiatrist) were far from satisfactory. I reserved these reasons, and publish them now, because I am concerned that N was very poorly served by health authorities who had his care, and the Public Guardian who also was responsible for his care.
N becomes a “Classified Patient”
Prior to having been arrested in relation to the last of the offences which were referred to the Mental Health Court, N had been living in the community with some support funded by Disability Services Queensland and outsourced to a provider called CLS.[12] The Public Guardian had been appointed to act on N’s behalf on 1 February 2012.
[12] Report of Dr Kulatunga, 4 May 2016, p 1.
After his arrest the Public Guardian had applied to a Magistrate for bail on N’s behalf. N was not granted bail by the Magistrate. Accordingly, he was remanded in custody on 1 November 2016. He was taken to Maryborough Correctional Centre. Corrective Services referred him to the Mental Health Unit at Bundaberg. The result was that he was taken to the Bundaberg Hospital and became a classified patient under the Mental Health Act 2000. I find that there was never any lawful basis for his being held as a classified patient, see below. There is no evidence that the Public Guardian ever questioned the decision to detain N as a classified patient, or the conditions he was kept in at the Bundaberg Hospital.
N becomes Homeless
The Public Guardian gave up N’s place in the unit in the community where he had been receiving care from CLS on 23 January 2017: CLS wanted to continue caring for N, but thought that they were not able to do so at the particular unit where he had been living. CLS wanted powers to stop N going out of the unit, called restriction and containment powers, but had not been granted them by the Public Guardian. The material does not explain how the issue about containment and restriction was related to the particular unit in which N was living. However, the view that the unit was unsuitable was accepted by the Public Guardian and was the basis for its decision of 23 January 2017.
The difficulty for N was that, without a home, there was no prospect of his being granted bail on an application to the Supreme Court. It should have been a priority for the Public Guardian to find accommodation for N, so that a bail application could be made. There is no indication that this was a priority for the Public Guardian. By the time I dealt with the matter in June 2017, N still had no home to go to, and no bail application had been made.
The Public Guardian found a Department of Communities’ house for N in Maryborough, not Bundaberg. It found this place in April 2017 and decided to accept it on behalf of N on 16 June 2017. I was assured that the timing of this decision and the hearing of N’s reference in the Mental Health Court (20 June 2017) was only coincidental. There was no explanation as to why it took the Public Guardian so long to find a new place for N, or so long to accept the place once it had been found. There was no explanation as to why the place was in Maryborough, not Bundaberg. There was no explanation as to why the Public Guardian did not promptly: (a) find a home in the community for N, and (b) make a bail application to the Supreme Court after the Magistrate’s refusal of bail.
The dispute between the Public Guardian and CLS at the time the parens patriae matter first came before me[13] was whether CLS should have power to restrict or contain N. Although the Public Guardian had by that time accepted the house in Maryborough, CLS would not accept N at the house without this power, and the Public Guardian maintained it was not necessary. On the material before me then, this situation was exactly the same as it had been at 23 January 2017.
[13] 23 June 2017.
N is detained in the HDU
From 3 November 2016 N was kept at the Bundaberg Hospital as a classified patient. He was kept in the HDU. The evidence is that this is not a suitable place to keep anyone for the length of time N was kept confined there. The evidence is also that N was noted to suffer distress because he was kept in the HDU:
“Currently, as a small service, we are unable to provide the level of care and engagement that [N] requires to reduce his risk. Our small and low stimulus [high dependency unit] does not provide a long term therapeutic environment as it was designed for short term de-escalation of acutely psychotic patients. His disabilities make [N] vulnerable to other acutely unwell patients. We see this in his increased anxiety, regression and acting-out behaviours when severely disturbed co-patients are managed in the [high dependency unit]. He needs an opportunity for treatment, rehabilitation and education appropriate for a young man, but in a secure environment. …
…
Recently, his delusional beliefs that he has demons and has given his soul to the devil are less prominent. This may have improved because of a change in antipsychotic from aripiprazole to olanzapine. He is also able to concentrate for longer to read and colour adult colouring books and has visits from YMCA support workers. However, [N] still complains of boredom. He spends a small amount of time on the low dependency unit in the evenings when staff are available for supervision. He looks forward for a walk out of the unit but because of the classified status we are not allowing that. There are still occasional sexualised behaviours: approaching female staff, urinating and defecating, but over all these are better controlled.
…
Risk
1)     Absconding
[N] has remained in our small high dependency unit (HDU) due to his high risk of absconding from the low dependency unit (LDU).
2)     Arson
Although he is allowed out onto LDU after visitation hours he requires 1:1 supervision, primarily due to his misuse of equipment. His obsession with smoking causes him to remain a fire safety risk. ...
3)     Sexual Offending
[N] has expressed sexual interest in age inappropriate young girls. …
4)     Risk of Physical Harm
Furthermore, he poses a significant risk of physical harm to members of the public due to his impulsivity. To utilise an example, stealing cars and driving without a licence could potentially lead to the death of other road users and pedestrians.
Summary
…
We welcome Disability Service’s placement proposal for this young man, and would like to progress through our joint planning a bail application through his legal representatives and the Adult Guardian, to optimize his treatment and care.”[14] (my underlining)
[14]    6 April 2017 letter from Psychiatrist at Wide Bay Hospital and Health Service, to Department of Communities, unnumbered exhibit bundle to Court Document 3 (part of exhibit 7).
The affidavit eventually sworn by the Chief Psychiatrist in this matter was to the effect that a patient in an HDU must be observed every 15 minutes at a minimum. This is an indication of how unwell a patient must be to be detained in an HDU. N’s condition was not remotely comparable to the condition of someone who is so unwell as that. Further, when other patients were extremely unwell and needed de-escalation in the HDU, they were confined there with N. It is not surprising this was distressing to him.
There is nothing before me which shows that the Public Guardian was advocating for N to be kept somewhere other than in the HDU during the eight months he was confined there. In fact there is nothing to show that the Public Guardian made any enquiries so as to know how N was being held.
N is not granted any LCT
One of the infelicitous terms in both the Mental Health Act 2000 and Mental Health Act 2016 is “limited community treatment” (LCT). It means leave from the hospital ward in the case of an involuntary patient.[15] An involuntary patient who has escorted leave on the grounds of the hospital where they are an inpatient has the most restricted form of LCT. An involuntary patient who lives in the community and attends an outpatients’ clinic is said to have full LCT, however contradictory that expression. There is no category of LCT which involves “leave” from an HDU to a general psychiatric ward.[16]
[15] See the definition schedule in each of those Acts.
[16] ibid.
In the entire eight months he was detained as a classified patient N was granted no leave, not even onto the grounds of the hospital. The affidavit sworn by the Chief Psychiatrist (Dr John Allan) on 10 July 2017 contained, not in the body of the affidavit on oath, but in a letter which was exhibited to the affidavit, the following statement:
“In the case of [N], [N] was considered by the treating team to be at risk of vulnerability in prison. On this basis, the treating team took the right decision, in my view, to keep [N] as a classified patient. In regards to him not have leave, [sic] [N] was a high risk for absconding throughout his time as a classified patient. On this basis, I agree with the treating team that leave was not appropriate for him whilst he was a classified patient.”
In Dr Allan’s affidavit of 2 August 2017, there was almost no better information provided:
“7.     [N] was considered by his treating team to be a high risk of absconding throughout his time as a classified patient. This level of risk was assessed as high due to:
a.[N], on an almost daily basis, over the course of his admission as a classified patient expressed that he wanted to leave the hospital.
b.On 18 May 2017, [N] who was in the LDU, sort [sic] opportunity to run out the front door of the LDU. He was stopped by two staff and subsequently taken back to the HDU.
c.On 29 May 2017, [N] was located in the police air lock after a co‑patient had been transferred out of HDU.
8.     [N] was taken from the HDU to the LDU on at least 17 occasions, with 1 on 1 supervision from a staff member to minimise the risk of absconding. At other times [N] was encouraged to access LDU but declined. [N] accessed the LDU generally between 7 to 9 pm each night when visiting hours were finished. During those times in LDU, [N] had access to the multi-sensory room and use of the ward facilities.
9.     During the period 4 November 2016 to 5 June 2017, [N] was aggressive towards staff and other patients, damaged property, on a regular basis, displayed sexualised thoughts and actions of sexual gratification that included expressing intent to have sex with underage girls, and exhibitionistic behaviours towards staff and co-patients. In addition to [N’s] risk of absconding, the treating team considered that the compilation of these risk behaviours further established that it would not be appropriate for [N] to have limited community treatment.
10.    I did not receive an application from the doctor to consider approving limited community treatment. I became aware of his leave status on 25 May 2017.
11.    Applications are made to me, by doctors, when the doctor has determined that it is clinically suitable with a clinically appropriate plan for classified patients to receive limited community treatment.
12.    On a retrospective review, I agree with the treating team that limited community treatment was not appropriate for [N] whilst he was a classified patient. I make this assessment based on my review of the clinical file on CIMHA (the Consumer Integrated Mental Health Application – mental health electronic clinical file database) and other clinical material supplied to me by [N’s] treating team which records the incidents as outlined in paragraphs 7, 8 and 9 of this Affidavit.”

The information this time is sworn to, although it is plainly based on documents which are not exhibited and were not otherwise in evidence before me. The information is not just secondary evidence of documents, but is interpretation of them. Paragraph 8 is very vague as to the times N was offered access to the general psychiatric ward and if it is a reference to access after my decision in the Mental Health Court it is beside the point, see [66] and [67] below. Paragraph 9 is particularly objectionable for, just as a matter of English, it is difficult to know what behaviour it is said N exhibited on a regular basis, but there is absolutely no means of accurately assessing factual material as to N’s behaviour so as to test the conclusions drawn. Counsel appearing for the Chief Psychiatrist told me that the only relevant parts of CIMHA (referred to at paragraph 12 of the above quotation) were those interpreted and summarised at paragraphs 7, 8 and 9 of the above quotation.
The Crown is supposed to be a model litigant and this affidavit falls far below the standard expected by this Court. Further, it is very concerning that the substance of the documentary hearsay and interpretation contained in this affidavit does not sit well with the evidence which was given about N by treating psychiatrists in a series of reports spanning 12 months including the eight months of N’s detention as a classified patient, see below.
It was not until after two hearings before me in June 2017 that the Public Guardian wrote to the Chief Psychiatrist and N’s treating psychiatrist, asking the treating psychiatrist to review the question of whether or not N should be an inpatient and asking that “the treating team clarify the nature of [N’s] recent access or authorised leave outside the secure ward”. That letter also asked the treating team to consider using the funding package which was current (20 hours community access funding per week, with one‑on‑one support) to enable N to transition back into the community.[17] On the same day the Public Guardian wrote to the Department of Communities asking how N’s “current 20 hours community access funding has been utilised since his admission [to the Bundaberg Mental Health Unit]”.[18] The answer to this question was that the money was spent paying someone from the YMCA and someone from CLS to attend the HDU and converse with N and play Monopoly and cards with him, or assist him to write letters.[19]
[17]    Exhibit 10 to Court Document 3.
[18]    Exhibit 11 to Court Document 3.
[19]    Exhibit 13 to Court Document 3.
These enquiries were made more than eight months after N’s detention in the HDU with no leave. They indicate that the Public Guardian was not aware of N’s situation through the time of his detention. It ought to have made itself aware of N’s situation throughout this time. Once aware of it, the Public Guardian ought to have advocated against N’s detention in the Bundaberg Hospital, including by making an application to this Court if necessary.
N’s Illness and Treatment
The reports in the Mental Health Court show the state of N’s illness and treatment in the time leading up to his being made a classified patient, and the time after his being made a classified patient. I will summarise these.
The first report is by Dr Kulatunga dated 4 May 2016. It is written at a time when N was still living in the community with support from Disability Services. He was on an Involuntary Treatment Order which had been started in September 2010 when he was an inpatient at the adolescent unit at the Royal Brisbane Hospital. Dr Kulatunga had seen N on 31 March 2016 after N’s arrest for various offences. Dr Kulatunga said:
“[N] presented in his usual mental state of being polite and co-operative. In spite of having spent time on remand, a few days prior to the assessment there was little evidence of him being under any distress.”
Dr Kulatunga goes on to say:
“We do not believe that his recent disruptive behaviours are due to Psychosis. Therefore, we do not believe that medication manipulation will provide a resolution.
His behaviours seem more likely to be secondary to a combination of disinhibition by substances (mainly alcohol), impulse control problems in a person with global impairment of judgement due to Intellectual Impairment, Paraphilic tendencies (possibly as a consequence of childhood sexual trauma), and a lack of appropriate or adequate supervision and behavioural control.
…
Recently, his on-site ‘awake’ care hours were decreased, with a carer on-site, but expected to be asleep from 2200hrs to 0600hrs, effectively providing no oversight of [N] at night. [N] is free to wander around at his whim, or influenced by exploitative individuals in the community. He is drinking regularly, including at the house where he lives.
…
In essence, we have a patient, [N], who is a scared, lonely, uncontained young man, with a developmental disability, a history of extensive trauma and a complex interplay of the other multiple subclinical mental health issues that are co-morbid. His environment does not consistently provide the level of support and supervision that his disability needs require. This living and support arrangement expose [N’s] deficits in handling novel and/or stressful situations, as has occurred in the circumstances leading to the charges under consideration.
Therefore, we also respectfully submit that our recommendations for a safe, supervised, structured environment that provides leisure and social inputs would be far more likely to be successful.” (my underlining)
The second report is from Dr Kulatunga dated 23 May 2016. N was still living in the community. Once again the doctor says that he does not believe that N’s recent disruptive and sexualised behaviours are due to psychosis. He did not believe that the solution was medication. He believed his current medication was adequate. He believed that the treating team’s recommendation of 24-hour support in a shared and fully supervised home would ensure safety and would alleviate N’s “anxieties and loneliness”. Dr Kulatunga describes a dispute between the doctors treating N, and Disability Services Queensland. Disability Services believed that N’s behaviours were “mainly a manifestation of undertreated Schizophrenia or Psychosis. DSQ also believe that we should engage him in psychotherapy to address his issues.” Dr Kulatunga says that the treating team disagreed with that. They did not believe N was a suitable candidate for psychotherapy or that further antipsychotic medication would have any effect on N’s behaviour. Once again he appealed for a safe, supervised, structured environment in the community.
There was a further report to the Mental Health Court from Dr Kulatunga dated 20 July 2016. He essentially repeats the statements which have been made in previous reports.
Dr Kulatunga wrote a fourth report dated 25 November 2016. N had been made a classified patient. Dr Kulatunga repeats his views that N’s behaviours are not due to mental illness but “more relating to his childhood trauma and his response to poor attachment”. He repeats that the solution is not medication. He says, “His behaviours seem more likely to be secondary to a combination of impulse control problems in a person with global impairment of judgement due to Intellectual Impairment.” He repeats that the medication regime is adequate. He concludes, “Our recommendation is for 24 hour support, in a shared and fully supervised home that would ensure safety and alleviate his anxieties and loneliness.”
Dr Kulatunga writes a further report dated 10 February 2017. N is still a classified patient. Dr Kulatunga repeats the statements he had made previously about psychosis not being the cause of N’s behaviour; medication being adequate, and repeats that N is not a candidate for psychotherapy. He repeats his recommendation for 24 hour support in a shared, fully supervised home.
Dr Clark made a report dated 29 May 2017. N was still a classified patient. Dr Clark does not believe that his behaviours are due to psychosis or anxiety and says:
“While [N] is a Classified Patient on Treatment Authority, his current mental state and risk profile do not warrant acute inpatient mental health treatment. Any psychiatric symptoms are well controlled and any psychotic-like symptoms are at baseline. To date [N’s] psychiatric treatment needs have been effectively met in the community setting in accord with a Treatment Authority Mental Health Act and the Guardian Administration Act.” (my underlining)
Dr Clark goes on to say:
“His current living and support arrangement in the High Dependency Unit on the Inpatient Psychiatric Unit expose [N] to exacerbation of his deficits in handling novel and stressful situations.”
She recommends 24 hour supported community care. She expresses the view that although his treating team have been working with others including Disability Services Queensland, the Adult Guardian and CLS, “We have been unable to progress this without his Mental Health Court hearing or bail approval. We trust the Mental Health Court hearing may allow us to progress this matter further in a timely manner.” I will add that this last opinion shows that Dr Clark was under a misapprehension as to the role of the Mental Health Court (at least).
As to N’s behaviour on the ward she says:
“From time to time during the admission there have been incidents, generally in relation to seeking attention from staff be that positive or negative in nature, to have needs met or when he becomes upset by a co-client or when a co‑client has become upset at his behaviour. The Inpatient Unit Staff have managed each incident based on its own merits, and [N] settles with support by staff.”
She concludes:
“Therefore, we also respectfully submit that our recommendations for a safe, supervised, structured environment that provides leisure and social inputs would be far more likely to be successful.”
On 26 June 2017 after the Mental Health Court reference was finalised and after the first parens patriae hearing, N’s treating psychiatrist wrote to the Office of the Chief Psychiatrist saying:
“… As noted above [N] is currently receiving treating under authority; an inpatient category. [N] meets treatment criteria [for involuntary treatment]: having a mental illness, lacking capacity and presenting high risk of deterioration in illness increasing his risk to himself, his vulnerability and risk to others substantially. [N’s] current admission for the majority has been in relation to his classified status under the MHA 2016. Following Mental Health Court (MHC) on 21.06.2017 his continued inpatient admission is primarily occurring whilst we establish a transition plan back into community into appropriately funded accommodation and psychosocial support services through Department of Communities under the approval of the Public Guardian.
As treating psychiatrist, in consultation with the Office of the Chief Psychiatrist, we ask that the Office of the Public Guardian make consideration as to whether [N’s] current admission may now be approved under a less restrictive alternative, within the decision-making responsibilities of the Public guardian. Please note that [N’s] current mental state does not warrant acute admission and his treatments can adequately be provided for in a community setting. Until an alternative less restrictive option is available we will necessarily be required to continue with the current inpatient categorisation and we will utilise Limited Community Treatment (LCT) to facilitate [N’s] transition as referred to below.
…
Notably [N’s] current presentation does not require inpatient intervention. …
…
We have commenced [N] on LCT, initially 4:1 (comprising x 2 security & x 2 clinicians) [N] has progressed well and has on one occasion tolerated and safely returned following 2:1 escorted leave. …”[20] (my underlining)
[20] Exhibit 14 to Court Document 3.
Legislative Provisions
At the time N was denied bail, the Mental Health Act 2000 was in force. Chapter 3 Part 3 applied to people in lawful custody who had been charged with an indictable offence – s 64. Section 65(1) provided that the person’s custodian (here Corrective Services) “may authorise the person’s assessment … at an authorised mental health service”. After the authorisation referred to at s 65(1), the 2000 Act provided for the person the subject of the authorisation to be taken to an authorised mental health service – s 68(1). Once there, and on the documents authorising the assessment being presented to the health service, the subject of the authorisation became a classified patient – s 69(1). Section 69(2) provided that “the classified patient may be detained in the health service”. Section 70(1) provided that on the person becoming a classified patient, the administrator of the authorised mental health service was to give written notice to the Director of Mental Health of the patient’s detention as a classified patient. Section 70(2) required that the Director of Mental Health give written notice to the Chief Executive of Justice of the patient’s detention as a classified patient.
These provisions are very particular. No doubt that is because they deal with someone who is imprisoned.
This process applied to N. A recommendation for assessment was signed on 2 November 2016 by somebody ticking a box on the form as a “authorised mental health practitioner”, rather than the box labelled doctor. This form contained the following information which seems to be a mixture of a standard form and information supplied by the practitioner:
“Reasons
Assessment criteria (s13)
◊       the person appears to have a mental illness

Long term established diagnosis of: Unspecified nonorganic psychosis, anxiety, moderate mental retardation & Reactive attachment disorder of childhood.

Treated with Ability Depot 400mg monthly

Long term case management with Bundaberg [Mental Health Services]

ITO to Bundaberg [Mental Health Services]

Presents as impaired due to functioning level and highly vulnerable with prison population

Reports losing soul to the devil by selling it to become more confident, reports ongoing auditory hallucinations. States that he has a demon inside and asking for it to be removed. States he must kill somebody to have devil removed

Reports high levels of anxiety

Engaging with officers and other reception prisoners requesting that they kill him
◊       the person requires immediate assessment

[N] requires immediate assessment at a authorised facility
◊       the assessment can be properly be made at an authorised mental health service

An assessment can be made at an authorised service
◊       there is a risk that the person may – cause harm to himself or herself or someone else or suffer serious mental or physical deterioration

[N] presents as a high vulnerability risk, openly requesting that other prison[ers] and officers kill him. Given his level of function he is at high risk from other prisoners.
[N] is openly reporting a wish to die and to kill others. He maybe at risk of acting on these beliefs and thoughts.
◊       there is no less restrictive way of ensuring the person is assessed.

There is no less restricted way
◊       the person* is lacking the capacity to be assessed or has unreasonably refused to be assessed

Classified patient”[21]
[21]    Affidavit of Bradley Fitzgerald, filed 17 November 2017, exhibit 1.
The Mental Health Act 2000 provided that, within three days after a person becoming a classified patient, an authorised doctor for the authorised mental health service who received him, was to make an assessment of the patient to decide whether the “treatment criteria applied to the patient” – s 71(1). The treatment criteria are defined at s 14 of that Act as follows:
“14 What are the treatment criteria
(1) The treatment criteria for a person, are all of the following—
(a)the person has a mental illness;
(b)the person’s illness requires immediate treatment;
(c)the proposed treatment is available at an authorised mental health service;
(d)because of the person’s illness—
(i)there is an imminent risk that the person may cause harm to himself or herself or someone else; or
(ii)the person is likely to suffer serious mental or physical deterioration;
(e)there is no less restrictive way of ensuring the person receives appropriate treatment for the illness;
(f)the person—
(i)lacks the capacity to consent to be treated for the illness; or
(ii)has unreasonably refused proposed treatment for the illness.
(2) Despite the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998, the person’s own consent only is relevant for subsection (1)(f).”
The assessment made pursuant to s 71(1) was as follows:
“[N] is a 22yo male who is case managed with a Dx of intellectual impairment, reactive attachment disorder, anxiety disorder, and mental and behavioural disorder due to tobacco use, dependence syndrome. Currently being treated for ‘unspecific nonorganic psychosis’ with aripiprazole 400mg depot q4weekly (last given 25/10/2016). On ITO.
He was last reviewed on 28/10/2016 at the request of QPS where he was in police custody c/o stealing a car. The outcome of this review was a recommendation for an admission for further diagnostic clarification. See previous notes on 28/10/2016 and 25/10/2016 for further details.
[N] was remanded for Unlawful use of Motor Vehicles and Driving without License.
Reviewed by Prison Mental Health where there were concerns regarding his mental state. A recommendation was made for further assessment.

[N] was transferred to HDU at Bundaberg Mental Health for further assessment as a classified patient. See notes from Prison Mental Health on 02/11/2016 for further details.
[N] was reviewed. He appeared indifferent to his transfer from Correctional Services to the Inpatient Unit, repeatedly requesting a cigarette and asking whether he could be stepped down to LDU. Advised him of his classified status.
[N] reports no specific event had occurred at the Correctional Services facility and denies acting out of character there. This can be confirmed from notes by Prison Mental Health where the topics presented were similar to those in his previous presentations.
MHx:
-intellectual impairment
Meds:
-Aripiprazole 400mg depot q4weekly, last administered 25/10/2016
Psych Hx:
-unspecified nonorganic psychosis

-reactive attachment disorder

-anxiety disorder

-mental and behavioural disorder due to tobacco use, dependence syndrome
Allergies – NKDA
substance Use:

-states usually smokes 25 cigarettes/day but hasn’t had any for the past 2/52

-denies any recent illicit drug use
MSE:
[N] is a 22yo male of thin body habitus. Alert. Found lying in bed covered with hospital sheet. Malodorous.

Cooperative.

Reactive affect.

Describes mood as ‘a bit low’

Nil psychomotor agitation or retardation

Speech rate, rhythm, volume normal.

Thought process – goal directed

Thought content – surrounding wishing to have cigarette and stepping down to LDU.

Nil perceptual disturbances noted presently.

Cognition – not formally assessed

Insight – poor. Does not believe he has a mental illness.

Judgement – poor. History of absconding from carers and not understanding his actions.

Risk to self – moderate – presently settled but it is acknowledged that this may increase c/o poor judgement and chronic risk of misadventure

Risk to others – moderate in inpatient unit. High in community c/o misadventures that have a high potential to harm others.

Vulnerability – high
Imp: Admission for Diagnostic Clarification on background of Dx of unspecified nonorganic psychosis and intellectual impairment.
Plan:
1)     Admit to HDU under Dr Kulatunga for diagnostic clarification

2)     HDU obs

3)     Urine drug screen & urine m/c/s

4)     Bloods including FBC, CHEM20, TFTs, Fasting Lipid Profile

5)     PRNs written

6)     No regular medications required at present

7)     Depot written

8)     Declined nicotine patch. Nicotine gum prn written.”[22] (my


underlining)
[22]    Affidavit of Bradley Fitzgerald, filed 17 November 2017, exhibit 6.
Treatment Criteria Not Satisfied

The s 71(1) report is shown to be made by a “Medical Officer Non Specialist”. It is supposed to be made by an authorised doctor. A doctor could only be authorised if they have “the necessary expertise or experience” – see s 504(2) of the Act. How a non‑specialist doctor came to be authorised to write this assessment when there were psychiatrists at the Bundaberg Hospital, some of whom were N’s treating doctors, I cannot fathom. I think it very likely the person making the report was not an authorised doctor as required by the Act.
The assessment does not specifically address whether the treatment criteria apply to N. That is a remarkable deficit. Further, the material before me does not support the idea that the treatment criteria did apply to N. I will give my reasons for that conclusion.
The material was that the doctors who dealt with N before and during the time he was a classified patient thought that he had a psychosis, so the evidence supports the proposition that at the time he was assessed at the Bundaberg Hospital as a classified patient, treatment criteria 14(1)(a), (b) and (c) were satisfied. The material also shows the criterion at s 14(1)(f) was satisfied.
There was no evidence before me that because of N’s illness there was an imminent risk that he would cause harm to himself or someone else or that he was likely to suffer any serious mental or physical deterioration. As the material at [40] shows, N was assessed to be vulnerable in prison because of his behaviours there. It is clear from the material at [42] and more generally [28]-[36] (above), that N’s behaviour in prison was his usual behaviour. There is no indication in the assessment pursuant to s 71(1) of the Mental Health Act 2000, or in the reports which I have summarised above, that this behaviour was due to illness; in fact, to the contrary. Therefore, there was no evidence before me that the criterion at s 14(1)(d) was satisfied.
There was no evidence that the criterion at s 14(1)(e) was satisfied. There was obviously a less restrictive way of ensuring that N received his medication; it was the way that had been pursued for months, if not longer, before November 2016; namely that N would receive his medication by depot injection as an outpatient. In fact from the medical reports summarised at [27] to [37] above, it is clear that from 25 November 2016 the psychiatrists treating N considered and recommended that he be treated in the community in supervised conditions. Clearly in their view N did not need to be an inpatient for his illness to be treated. There is no indication from the assessment pursuant to s 71(1) of the Mental Health Act 2000 that this situation was any different on the day N was made a classified patient; the indications are to the contrary.
The s 71(1) assessment has a plan to admit to the HDU for diagnostic clarification. This “plan” was made by a non-specialist medical officer. It is clear from the medical reports summarised at [27]-[37] above that the psychiatrists who had been treating N at least since March 2016 did not require any diagnostic clarification, and did not require N to be an inpatient in order that his diagnosis be clarified. The s 71(1) assessment does not conclude that N needed to be detained in the hospital for treatment.
Further Legislative Provisions
Section 71(2) of the Mental Health Act 2000 provided that if on the assessment of the new classified patient, the doctor decided that the patient did have a mental illness, the doctor was also to decide whether or not the patient needed to be detained in the health service as a classified patient for treatment of the illness. My comments apply equally here: the material does not show that s 71(2) of the Mental Health Act 2000 was satisfied: N did not require to be detained in a health service for treatment of his illness.
Section 72 of the Mental Health Act 2000 provided that if the authorised doctor performing the task under s 71 decided that the patient did need to be detained in the authorised mental health service as a classified patient for treatment of a mental illness, the doctor was to ensure a treatment plan was prepared for the patient. No treatment plan prepared for N was in evidence. The plan recorded at the end of the s 71(1) assessment is not a plan for treatment. The doctor writing the report was not qualified to make a plan to treat N’s illness. No plan to treat N’s illness was needed, a perfectly adequate plan already existed; it did not depend on his being an inpatient.
Section 73(1) of the Mental Health Act 2000 provided that if a classified patient was detained in an authorised mental health service, the administrator of the authorised mental health service was to ensure that an authorised psychiatrist carried out regular assessments of the patient as required under the patient’s treatment plan. Section 73(3) provided that in carrying out these regular assessments of the patient, the psychiatrist was to decide whether the treatment criteria continued to apply to the patient. Section 73(4) provided that during the regular assessments the psychiatrist was to decide whether or not the patient needed to continue to be detained in the health service as a classified patient for treatment of the illness.
There was no evidence of these prescribed regular assessments being undertaken of N. The evidence was that had they been, they would have revealed that the treatment criteria did not apply to N and that he did not require to be detained in the health service as an inpatient for treatment of illness – see paragraphs [28]-[36] above.
If, on one of the regular assessments required by s 73, it was found that the patient no longer required to be detained as an inpatient or that the treatment criteria no longer applied to the patient, notice ought to have been given to the Director of Mental Health – s 74(2) of the 2000 Act. The Chief Psychiatrist said in submissions, not on oath, that he never received any such statutory notice. However, each of the reports which I summarise at paragraphs [27]-[36] above was a report prepared under s 238 of the Mental Health Act and is addressed to, and was sent to the, then, Director of Mental Health.[23] Each of those reports was filed in the Mental Health Court by the Director of Mental Health or the Chief Psychiatrist. That is, at all relevant times after receiving the report of 25 November 2016 the Chief Psychiatrist knew that N was a classified patient; ought to have known that N did not satisfy the treatment criteria, and ought to have known that N did not need to be detained in hospital for treatment of any illness. Further, from the time of receiving the report pursuant to s 71(1) the Chief Psychiatrist ought to have known that the report had been prepared by someone unqualified to make it, who had not addressed the treatment criteria and had not formulated a treatment plan as required by the Act.
[23] See ss 238(3) and 239 of the Mental Health Act 2000.
Under the Mental Health Act 2000 an authorised doctor treating an involuntary patient, including a classified patient, could authorise LCT with the director’s written approval – s 129(1) and (2)(b), and see ss 71(3) and 73(5). Section 129 provided:
“…
(3)     The director must not give an approval under subsection (2)(b) unless the director is satisfied there is not an unacceptable risk of one of the following events happening if the treatment were undertaken in the community—
(a)the patient would not return to the authorised mental health service when required;
(b)the patient would commit an offence while away from the health service;
(c)the patient would endanger the safety or welfare of the patient or others.
(4)     Also, in deciding whether to give the approval, the director must have regard to the following—
(a)the patient’s mental state and psychiatric history;
(b)the offence leading to the patient becoming a classified patient;
(c)the patient’s social circumstances;
(d)the patient’s response to treatment and willingness to continue treatment.
(5)     An approval under subsection (2)(b) may be given subject to the reasonable conditions the director decides.”
As well, s 132 of the 2000 Act provided that a classified patient undertaking LCT was required to be accompanied by an employee of the health service in which the patient was detained.
On 5 March 2017 the Mental Health Act 2016 came into effect and N became subject to it – ss 804 and 813 of that Act. The 2016 Act contains provisions similar to those of the Mental Health Act 2000, just discussed.[24]
[24] By s 201 of the 2016 Act an authorised doctor is required to examine someone “as soon as practicable” after they become a classified patient. Section 78 requires the person conducting that examination to “consider whether it is clinically appropriate for the patient to receive treatment and care for the patient’s mental illness in an inpatient unit of an authorised mental health service”. After that, there is an ongoing requirement for the patient to be examined regularly. Section 205 provides for such a patient to be examined every three months, but also any time the authorised doctor thinks either that the treatment criteria no longer apply to the patient, or that there may be a less restrictive way for the patient to receive treatment.
Both the Mental Health Act 2000 and the Mental Health Act 2016 are concerned that a patient is treated in the least restrictive way possible. Section 9 of the 2000 Act stated this general principle:
“9     Principles for exercising powers and performing functions
A power or function under this Act relating to a person who has a mental illness must be exercised or performed so that–
(a)     the person’s liberty and rights are adversely affected only if there is no less restrictive way to protect the person’s health and safety or to protect others; and
(b)     any adverse effect on the person’s liberty and rights is the minimum necessary in the circumstances.”
Similarly, s 3(2) of the 2016 Act provides:
“…
(2) The main objects are to be achieved in a way that–
(a)safeguards the rights of persons; and
(b)is the least restrictive of the rights and liberties of a person who has a mental illness; and
(c)promotes the recovery of a person who has a mental illness, and the person’s ability to live in the community, without the need for involuntary treatment and care.”
Section 26 of the 2016 Act provides as follows:
“26 Chief psychiatrist
(1)     The chief psychiatrist protects the rights of patients in authorised mental health services.
(2)     The chief psychiatrist makes policies and practice guidelines that must be complied with by persons performing functions in authorised mental health services.
(3)     The chief psychiatrist has powers to investigate matters under this Act.”
Findings: Lawfulness of Detention as Classified Patient
For the reasons given above, N was never lawfully detained as a classified patient. The evidence shows that the person completing the assessment under s 71(1) of the Mental Health Act 2000 was not appropriately qualified or experienced to do so. There were people in the hospital who were appropriately qualified to do so. That assessment did not have regard to the treatment criteria. N did not meet the treatment criteria. The assessment did not contain a treatment plan as required by the Act. It appears that no separate consideration was given to the requirements of ss 71(2) or 72 of the Mental Health Act 2000. Further, it appears that ss 73 and 74 of the Mental Health Act 2000 were never complied with.
Presumably provisions under the 2000 and 2016 Acts requiring that the Chief Psychiatrist is given notice when a patient is made a classified patient have the purpose of providing some oversight by the Chief Psychiatrist of that patient’s detention. There is no indication in the material here that the Chief Psychiatrist exercised any oversight in relation to N, or any responsibility for him. According to the affidavit of Bradley Fitzgerald filed with leave on 17 November 2017, the Director of Mental Health received a notification of N’s classified status on 3 November 2016. He ought to have been aware of the deficiencies in the s 71(1) report. As well, the Director of Mental Health received the reports which I have summarised at paragraphs [27] to [37] above. Each one of them showed that there were no grounds to legally detain N as a classified patient. No reports were received by the Director of Mental Health pursuant to ss 73 and 74 of the Act. Apparently no-one at his office noticed this.
From the statement which I have extracted at paragraph [20] above, it appears that, remarkably, the Director of Mental Health did not understand what the criteria for detention as a classified patient were.
These are all serious defaults; they concern the liberty of a vulnerable young man. They totally contradict the least restrictive practices and principles enshrined in the Acts of 2000 and 2016.
This case is not about some well-meaning but technically incorrect decisions. Corrective Services owe duties and have procedures and dedicated places for the detention of prisoners who are vulnerable. It is not the role of Mental Health Services to detain people who they assess as vulnerable in prison. A person may only be detained as a classified patient where the lawful criteria for that detention are satisfied. Further, in this case N was detained in very unsuitable accommodation on very unsuitable terms: in an HDU, and without leave for eight months. That is, the detention was not beneficial to him.
Findings: Detention in HDU
It is clear from what has gone before that confinement in the HDU was unsuitable for N. Such units are not meant for the long term detention of any patients, they are meant for patients who require usually only some hours of intense care. N did not require inpatient care, let alone confinement in such a unit. The evidence is he found it distressing at times. This is hardly surprising given the significant illnesses of other patients who needed to be confined in the HDU for clinical reasons. N was, as noted in the medical reports, a scared, lonely young man with a history of extensive trauma and a dislike of engagement with treatment.
I think it evident from the material before me that his detention in the HDU affected N adversely. A document headed “Medical Review on 23 June 2017”, which is not signed but which seems to be a product of a review by the treating psychiatrist and the nurse unit manager, contains the follows:
“Of note is that [N’s] behaviours currently do not necessitate high dependency unit admission. He is to be encouraged to make use of the full inpatient facilities, including those in low care. As part of behaviour management strategy, staff are to allow [N] to take the lead in accessing a low stimulus environment when he requires it.
Since [N] has been managed in a highly contained environment up to now, he requires a transitional plan to support him to move to the general ward environment, to access leave outside the inpatient unit and to make the eventual transition to the accommodation that has been identified for him.”[25]
[25] Part of exhibit 12 to Court Document 3.
It seems that having been detained in the HDU for so long N could not tolerate the stimulus of a general ward. Further, despite his constantly expressed wish to leave the hospital throughout his detention there, when he was granted leave after the Mental Health Court reference was determined, he could not tolerate interaction with the outside world. On 22 June 2017 N was granted escorted leave on the hospital grounds for 30 minutes on two occasions.[26] He then spoke to his treating psychiatrist on 23 June and reported that “every time he is outside and goes near any person, he starts getting butterflies in his stomach and that he can’t help it”.[27] On 27 June 2017 he declined all leave outside the psychiatric unit, in the words of the treating psychiatrist, “despite persuasion by myself, his Case Manager and nurses”.[28]
[26]    Court Document 8.
[27]    Exhibit 14 to Court Document 3.
[28]    Court Document 8.
N should not have been detained as a classified patient. He had no need for inpatient care. There was no clinical reason for him to be detained in HDU. It distressed him and caused him harm.
Findings: Lack of Leave
As to N’s not being given leave for eight months, the affidavit of the Chief Psychiatrist says only, “I did not receive an application from the doctor to consider approving limited community treatment. I became aware of his leave status on 25 May 2017.” No detail is given as to how the Chief Psychiatrist became aware of N’s leave status.
This speaks to a lack of oversight by the Chief Psychiatrist. The Chief Psychiatrist’s office was given notice that N was a classified patient on 3 November 2016. It received several reports, starting with one dated 25 November 2016 which showed that N should not have been an inpatient, much less someone who should have been detained without leave. The Office of the Chief Psychiatrist had not received an application for leave, so, legally, N could not have been having any leave. No questions were raised by the Chief Psychiatrist as to this over a period of eight months. The lack of oversight is worse when N’s situation, as it ought to have been known to the Chief Psychiatrist from the reports which his office received, is compared to that of other classified patients – see paragraphs [77]-[79] below.
As recorded above, initially the FLO who spoke to the Court during the mental health reference gave information that other patients were being treated in the same way as N. Because of those comments, I directed the Chief Psychiatrist to swear to the detail of the leave arrangements for all classified patients in the State. I specifically asked that the affidavit so sworn would show whether or not other persons were in the same situation which N had been in for the eight months prior to the Mental Health Court hearing. There was at least one other such person, see [5] above. After hearings in this matter concluded I asked the Chief Psychiatrist to list for callover any matters which were awaiting hearing in the Mental Health Court where the subject of a reference was detained as a classified patient, but was not held at The Park.[29] I was told there were no such patients.[30] I certainly hope that there are no patients being held as N was held. Unfortunately I cannot be entirely sure from the material filed on behalf of the Chief Psychiatrist.
[29] Transcript 31 October 2017.
[30] Email to the Registrar of the Mental Health Court from the Office of the Chief Psychiatrist, dated 31 October 2017.
The Chief Psychiatrist’s affidavit as to other classified patients does show that N was an unusual classified patient. Of the 42 classified patients as at 19 July 2017 only five were N’s age or younger and only six had not committed crimes of personal violence. Of those six, one had been charged with stalking and threatening violence and attempted arson (along with other offences). Additionally, two had been charged with assault or obstruct police (along with other offences), so in fact may have committed assaults. One more of the six had been charged with arson. Thus only two of 42 patients had been charged with offences which on their face seemed comparable to those with which N had been charged: viz., relatively minor property offences.
I was told from the Bar table that the average length of stay for a classified patient is 20 days.[31]
[31] Transcript of hearing 30 June 2017, t 1-16.
I am surprised that Dr Allan would attempt to justify N’s lack of leave during the eight months he was detained, as he does in that part of his affidavit extracted at paragraph [21] above. To say, as he does at paragraph 8 of his affidavit, that on 17 occasions in 220 days N was allowed out of the HDU and onto the general psychiatric ward, is to attempt to defend something indefensible.

Further, Dr Allan seeks to make an argument that N was an absconding risk. He points to two instances in May 2017. There is no material before the Court from which the Court can judge for itself what happened on those occasions and form any view whether, at that stage, N was an absconding risk. For seven months before that apparently the only basis of classifying N as an absconding risk was that he stated on an almost daily basis that he wanted to leave the hospital. This hardly justifies the conclusion that N was such an absconding risk that he could not have any leave. I will record that patients who are actively psychotic (which N was not) and dangerous in terms of personal violence (which N was not) are regularly and routinely allowed leave under escort from mental health facilities.
The material before me showed N does have aberrant behaviours including sexually inappropriate behaviour and very frequent self-harming behaviour, which one might think are consequences of his childhood experiences. The hearsay description of these in Dr Allan’s affidavit is much more robust than the descriptions by those caring for N – see [16] and [35] above. In any case, these behaviours do not constitute any reason why N could not have been allowed escorted leave. Indeed, throughout the entire time N was a classified patient his treating doctors were advocating for him to be released to live in the community under supervision. That is hardly consistent with a position that N’s behaviour was so bad he could not have escorted leave. In fact, again, the position taken by Dr Allan is uncomfortably at odds with the reality of this young lad’s treatment by the system he should have been supervising.
On 23 June 2017 an occupational therapist at the Wide Bay Mental Health Service was able to produce a timetable which showed N engaging in various activities on the grounds of the hospital and outside it, for example: “painting in courtyard”; “a walk around hospital grounds – 30 mins”; “walk down to riverbank – morning tea at river and take chessboard to play”; “walk along riverbank/hospital grounds 30 mins”, and “20 mins travel, walk along esplanade Bargara 30 mins, plus colouring at community tables 20 mins, 20 mins travel”.[32] There is no reason why that sort of leave could not have been implemented during the entire time N was at the Bundaberg Hospital. In particular, so far as hospital resources were concerned, the Department of Community Services was paying for 20 hours of carer time per week for N through the entirety of his stay, see [24] above.
[32] Exhibit 12 to Court Document 3.
After the hearing in the Mental Health Court, on the first occasion N had leave on the grounds of the Bundaberg Hospital he was accompanied by four persons to stop him absconding. On the second occasion he was accompanied by two members of staff. He made no attempt to escape on either occasion. The plan was that he would continue to be granted leave accompanied only by two carers, but as explained above, he would not co‑operate. Once in Maryborough Mental Health Unit, on 30 June 2017, as part of the plan to transition to community living in Maryborough, N had liberal access to the hospital grounds and to the town of Maryborough with CLS care workers. From 6 July 2017 N began spending time at the home which had been arranged for him. He was allowed overnight leave to the house from 12 July 2017. There was no indication in any of the material I had that he attempted to abscond at any time.
Findings: Other Patients
N’s case stood out amongst other classified patients because he was detained in an HDU at a psychiatric ward in a regional hospital. By comparison with N’s circumstances, nearly three-quarters of the classified patients as at 19 July 2017 were detained at The Park. Their conditions are described by the Chief Psychiatrist as follows:
“If determined clinically appropriate, patients at The Park High Secure Program AMHS have access to walk the large (1770m²) campus of the AMHS, go to the kiosk, attend gardening programs, play tennis, go to the gym, play basketball on the basketball court, swim in the swimming pool, participate in cooking classes and have access to communal spaces including lounge and dining rooms. These facilities are contained within the perimeter fence.”[33]
[33] Paragraph 15, affidavit of John Allan filed 2 August 2017.
Of the classified patients held at The Park as at 19 July 2017 only one (charged with threatening violence and stalking inter alia) had not committed an offence of actual violence. Nearly half had been charged with murder, attempted murder, grievous bodily harm, rape or attempted rape. N, whose most serious offence was stealing a car and driving it unlicensed, was in an HDU without leave.

Conclusions

Submissions on behalf of the Chief Psychiatrist were to the effect that it was reviewing its policies as to classified patients, and I hope that is so. In particular, there seemed to be systemic misunderstandings revealed by this case, including that a patient can be made a classified patient if vulnerable in prison; that classified patients must be kept in HDUs, and that classified patients cannot have leave. Further, there seems no system in place in the Office of the Chief Psychiatrist to review the documentation (or lack of it) which by statute must be sent to the Chief Psychiatrist. Oversight and supervision of classified patients is necessary if the Chief Psychiatrist is to fulfil his responsibilities at s 26 of the Mental Health Act 2016.
The Public Guardian made submissions that it had learned lessons from the facts of this case. Once again, I hope that is so, for this case displays unjustifiable delay in attending to N’s interests, and indeed neglect of them through the time he was a classified patient.
As explained above, N’s circumstances are now such that no order is necessary. Accordingly I dismiss the application.

CITATION:	Office of the Public Guardian v Department of Queensland Health, Office of the Chief Psychiatrist & Anor [2017] QSC 193
PARTIES:	THE OFFICE OF THE PUBLIC GUARDIAN OF QUEENSLAND (applicant) v DEPARTMENT OF QUEENSLAND HEALTH, OFFICE OF THE CHIEF PSYCHIATRIST (first respondent) and CHIEF EXECUTIVE, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES (second respondent)
FILE NO/S:	6420 of 2017
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	1 December 2017
DELIVERED AT:	Brisbane
HEARING DATES:	23 June 2017, 27 June 2017, 30 June 2017, 11 July 2017, 26 July 2017, 2 August 2017 and further written affidavits and submissions up to and including 17 November 2017
ORDER:	Application dismissed.
JUDGE:	Dalton J
COUNSEL:	SE Seefeld for the applicant J Tate for the first respondent NV Weston for the second respondent
SOLICITORS:	Office of the Public Guardian for the applicant Crown Law for the first respondent Crown Law for the second respondent