Re Beth (No 3)
[2014] VSC 121
•26 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 06398
| IN THE MATTER of an application in relation to ss 172 and 173 of the Children, Youth and Families Act 2005 and in the parens patriae jurisdiction of the Supreme Court of Victoria | |
| Application by the Secretary to the Department of Human Services | Applicant |
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JUDGE: | OSBORN JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27-28 February 2014 | |
DATE OF JUDGMENT: | 26 March 2014 | |
CASE MAY BE CITED AS: | Re Beth (No 3) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 121 | 1st Revision, 1 April 2014, [10], [23], [50] |
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COURTS AND JUDICIAL SYSTEM – Parens patriae jurisdiction – Application for review and extension of orders enabling child to be placed in a locked-down facility and restricted – Relevant considerations – Limitation as to what is necessary – Checks and balances – Form of order.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Davidson | Victorian Government Solicitor’s Office |
| For the Victorian Equal Opportunity and Human Rights Commission | Ms G Dewey, solicitor | Victorian Equal Opportunity and Human Rights Commission |
| For the Office of the Public Advocate | Ms P Carey | Office of the Public Advocate |
| For Victoria Legal Aid | Ms R Hamilton | Victoria Legal Aid |
HIS HONOUR:
Beth is a 17 year old intellectually disabled girl under the guardianship of the applicant (the ‘Secretary’).
She has suffered significant sexual abuse and violence in the course of her childhood and has developed serious behavioural problems. These problems have both exposed her to ongoing risk of further harm and materially affected the capacity of the Secretary to provide a satisfactory place of residence and framework of care for her.
On 10 May 2013 I made an order for the ongoing care and protection of Beth pursuant to the parens patriae powers of the Court. That order authorised the Secretary to place Beth in a purpose designed residential facility operated by a nominated social welfare agency.
It further authorised the use of lock-up facilities and restrictive interventions in the course of her care.
The order was expressly conditioned by the requirement that the Secretary and those acting under her direction use the least restrictive means necessary in exercising the powers to lock-up Beth or use restrictive interventions upon her.
It was contemplated that care would be provided to Beth in accordance with structured programs and plans and that the arrangements as a whole would be subject to ongoing supervision within the Department of Human Services (‘DHS’) including by the Senior Practitioner and independent vetting by:
· community visitors;
· the Principal Commissioner, Commission for Children and Young People; and
· the Public Advocate.
The order further required a detailed report to be filed with the Court (and served on interested parties) within six months describing Beth’s progress under the arrangements proposed and providing other specified documentation and that the matter be listed for mention before an Associate Judge of this Court within 14 days of the filing of the report.
Lastly, the order was required to be the subject of review by the Court on fresh evidence on or before Beth’s 17th birthday. It was ordered that Beth be separately represented upon the hearing of the review and Victoria Legal Aid was requested to provide such representation. It was directed that the role of the separate representative be akin to the role of a best interests lawyer as set out in s 24(11) of the Children, Youth and Families Act 2005 (‘CYF Act’).
This judgment records the outcome of that review.
The relief sought
The Secretary now seeks an order in the following terms:
OTHER MATTERS:
1.The Victorian Equal Opportunity and Human Rights Commission intervened in these proceedings pursuant to s 40 of the Charter of Human Rights and Responsibilities Act 2006.
2.In accordance with the orders of the Honourable Justice Osborn made on 10 May 2013, Beth was separately represented by Victoria Legal Aid.
3.The Court notes that it is common ground that:
1.Subject to this order, pt 7 of the Disability Act 2006 applies to [the nominated agency] as a ‘disability service provider’ as defined in s 3 of the Disability Act 2006, and applies to Beth because she satisfies the criteria in s 133 of the Disability Act 2006.
2.The supervision of community visitors under div 6 of pt 3 of the Disability Act 2006 applies to [the nominated agency] in its care of Beth.
3.The Principal Commissioner is empowered to monitor the conditions under which Beth is residing and being cared for, pursuant to pt 4 of the Commission for Children and Young People Act 2012.
4.The Public Advocate is empowered to inspect the premises at which Beth is being cared for, see Beth and make inquiries relating to her care, detention and treatment or control pursuant to s 18A of the Guardianship and Administration Act 1986.
THE COURT ORDERS THAT:
1.Victoria Legal Aid shall remain as the separate representative until further order.
2.Until further order or Beth’s 18th birthday, whichever occurs first, and notwithstanding the provisions of pt 7 and pt 8 of the Disability Act [2006] and the provisions of s 173(2)(b) of the Children, Youth and Families Act 2005, the Secretary and those acting under her direction are authorised to place Beth in the residential facility described in the affidavit of Robyn Miller dated 22 November 2012 (being premises operated and staffed by [the nominated agency]) and to use, and direct staff at [the nominated agency] to use, whatever means may be reasonably necessary for that purpose, including locking the facility, provided always that the staff at [the nominated agency] seek to use the least restrictive means necessary.
3.Until further order or Beth’s 18th birthday, whichever occurs first, and notwithstanding the provisions of pt 7 of the Disability Act [2006], the Secretary and those acting under her direction and the staff at [the nominated agency] are authorised to use further restrictive interventions (as that expression is defined in s 3 of the Disability Act 2006) on Beth including locking internal areas and, as far as is necessary, to use reasonable force in doing so, provided always that they seek to use the least restrictive means necessary to the extent such compliance is not inconsistent with these orders or the Children, Youth and Families Act 2005.
4.No later than 6 months after the date of this order, the Secretary shall file and serve on the intervenor and amici curiae a report from the Senior Practitioner, Specialist Services, Disability Services, Department of Human Services, or a person in a similar position, as to whether the orders in paragraphs 1 and 2 [scil 2 and 3] hereof continue to be required, together with any modifications which should be made to the orders to reduce the level of restrictions imposed on Beth. Such report is to:
a.address in detail:
i.why the orders (with any modifications) continue to be required in Beth’s best interests, if that is the opinion she forms;
ii.the extent to which the lock-up facilities have been used and the extent to which it will be necessary to continue to use those lock-up facilities while Beth remains under the custody and guardianship of the Secretary;
iii.the progress that Beth has made as against the statutory plans referred to in paragraph 3(b);
iv.a summary of Beth’s views on the placement; and
b.attach the operative versions of:
i.the Behaviour Support Plan under the Disability Act 2006; and
ii.the Statutory Case Plan under s 167 of the Children, Youth and Families Act 2005 including Stability Plan under s 170 of the Children, Youth and Families Act 2005.
c.attach a report by the Senior Practitioner on the use of restrictive interventions since the hearing.
d.attach reports from Beth’s general practitioner and psychiatrist identifying what medications have been prescribed for Beth and why those medications have been prescribed.
e.attach any plan or draft plan from the National Disability Insurance Agency.
5.The separate representative to provide an affidavit no later than one month after the filing of the report referred to in order 3 [scil 4] setting out:
a.Beth's views or wishes relevant to the orders and their continuation;
b.Whether the continuation of these orders (with any modifications) continue to be required in Beth's best interests.
6.The Secretary, Victoria Legal Aid and any intervenors and the amici curiae have liberty to apply on two days’ notice, such notice to specify any orders sought.
The hearing
On the hearing the Court was assisted by counsel appearing for the applicant, and an independent representative of Beth. It was further assisted by counsel appearing for the Victorian Equal Opportunity and Human Rights Commission as intervenor and for the Public Advocate as amicus curiae.
Affidavit evidence was tendered from the following:
· Campbell Walker, former Residential Supervisor at the nominated agency;
· Linda Saffron, Senior Practitioner, Specialist Services, Complex Clients Unit, Client Outcomes and Service Improvement, DHS;
· Robyn Maree Miller, Principal Practitioner, DHS;
· Michael Henry O’Kelly;
· Dr Helen Driscoll;
· Richard Stanley Kefford. Clinical Director, Child and Adolescent Mental Health Service, Barwon Health;
· Joanne Lee Westbury, former Residential Supervisor at the nominated agency;
· Erica Jayne Contini, Solicitor, Victoria Legal Aid; and
· Megan Elizabeth Archer, Advocate Guardian, Office of the Public Advocate; and
· Fernando Luciano Falvo, Assistant Program Coordinator, Office of the Public Advocate.
In addition the following witnesses were cross-examined:
· Campbell Walker;
· Linda Saffron;
· Megan Elizabeth Archer; and
· Erica Jayne Contini.
In the course of the hearing the Court undertook a visit to the house in which Beth is accommodated and spoke with her.
None of the parties oppose the making of the order sought by the applicant and all accepted that the material would justify its making. Nevertheless because of the potentially serious consequences resulting from the order the Court must itself be fully satisfied the order sought is appropriate before it is made. For the reasons set out below, I am so satisfied.
Background
It is unnecessary to repeat in full the findings of the Court which formed the basis of May 2013 order made with respect to Beth. Nevertheless it is useful to repeat some basic background:[1]
[1]Re Beth [2013] VSC 189 (‘May 2013 Reasons’), [128]-[139] (citations in original).
128The factual basis of the Secretary’s application is substantially summarised in the affidavit of Robyn Maree Miller, who is the Principal Practitioner with the Department of Human Services.[2]
[2]Robyn Maree Miller, as the Principal Practitioner with the Department of Human Services, reports to the Executive Director for the Children Youth and Families Division. She has over six years’ experience in this position, and has thirty years’ experience as a social worker and clinical family therapist working with traumatised families. She holds a Bachelor of Social Science from RMIT, a Graduate Diploma in Family Therapy from La Trobe University and a Masters in Family Therapy from La Trobe University, and is a PhD candidate at La Trobe University. She has published and taught in related areas.
129Beth first came to the attention of child protection authorities in Queensland when she was a small infant. She was hospitalised as an infant due to malnourishment from inadequate food and fluid intake. Her mother had been putting water into the baby bottle. Developmental delays were noted from Beth’s infancy.
130Her mother has a dual diagnosis of intellectual disability and mental illness including schizophrenia. She has a history of alcohol and drug abuse, homelessness and transience.
131Beth’s father has a history of violence, alcohol and other drug issues, homelessness and transience. He also has a criminal history.
132In October 1997, when Beth was only eight months old, she and her older brother were placed in out of home care in Queensland. Subsequently orders were made granting guardianship to the State. Since that time she has been the subject of guardianships either in Queensland or, since 1 August 2001, in Victoria.
133Between 1998 and 2010 Beth had a number of kinship placements. She was initially placed in her grandmother’s care but this proved inadequate and a series of incidents of inadequate supervision, and exposure to physical, verbal and emotional violence and sexual abuse occurred.
134In October 2005 Beth was placed in the care of one of her aunts. Between 2006 and 2008 Beth’s behaviour improved significantly and a number of previous behaviours including eating non-food items; wetting and soiling herself and smearing faeces on school walls; and hitting and kicking ceased or reduced in frequency. Beth presented well at school and made good progress.
135In 2009 whilst still in the care of her aunt Beth’s behaviour again deteriorated and her school reported that she was wetting herself again, smearing faeces on the wall, making herself vomit, eating non-food items, harming herself by putting objects in her mouth such as drawing pins and scratching herself. There were further reports of sexualised behaviours and anxiety.
136In February 2010 Beth disclosed being hit with a poly pipe and a leather belt at home and being sexually assaulted by her cousin. She was then 13 years old. She was removed from her aunt’s care. After February 2010 Beth was placed primarily in residential care but her behaviour resulted in numerous admissions to the SWS,[3] as well as periods in police custody and in the Youth Justice Custodial Services at Parkville.
[3]Secure Welfare Service.
137In summary, she was placed as follows:
· From February 2010 to June 2012 Beth was placed in a group residential home in a country town. During that time she was placed in SWS on five occasions following incidents of self-harmful and violent behaviour.
· In June 2012 Beth was placed in the Youth Justice Custodial Services at Parkville from 15 June 2012 to 21 June 2012.
· Following this she was placed in a one to one placement in a country town under the leadership of an experienced senior manager, MHO.
· She then returned to the Youth Justice Custodial Services in Parkville.
· Between 19 July 2012 to 24 July 2012 she was placed in SWS.
· Between 24 July 2012 to 26 July 2012 she was placed in a specialised residential unit but following assaults upon staff and abscondment she was arrested by police.
· Between 26 July 2012 and 13 August 2012 she was placed in SWS.
· Between 13 August 2012 and 15 August 2012 another attempt was made to place Beth in a specialised residential unit. Again, she assaulted staff and absconded. Whilst absent she engaged in an act of prostitution and was subsequently sexually assaulted.
· On 23 and 24 August 2012 she was placed in SWS and whilst being transported she assaulted her carers and urinated in the car. She was again arrested by police.
· She remained in SWS from 25 August 2012 to 25 October 2012.
· On 25 October 2012 she was taken to Werribee Zoo but caused damage to a car and attempted to abscond.
· Beth then remained in SWS until her placement in her current accommodation.
138In November 2012 Ms Miller made the following assessment of Beth’s care and treatment needs:
74Throughout her placements in residential care, [Beth]'s behaviour has been very concerning and difficult to manage and has continued to deteriorate. There are multiple incident reports, particularly since January 2011, involving [Beth] absconding from placement, exhibiting physical violence toward staff, defecating on the floor, running onto the road, being abusive and damaging property. In addition, [Beth] has engaged in increasingly concerning sexualised behaviours.
75I consider that a number of factors have contributed to [Beth]'s behaviour:
75.1[Beth] has a history of disrupted attachments. She was removed from her parents at an early age (temporarily at eight months and permanently at 15 months). Her attachment to her grandmother [A] was disrupted when [Beth] was removed from her care and placed in the care of [V] at age 8. [Beth] was then removed from kinship care at age 13.
75.2From a young age, [Beth] has experienced, and been a witness to, physical, emotional and sexual abuse. She has had to develop significant coping skills to deal with the trauma she has experienced. These coping skills have developed into the behavioural difficulties [Beth] now experiences.
76[Beth]'s behaviours are classic 'fight or flight' behaviours. During periods of uncertainty and stress, [Beth] either absconds (flight) or becomes abusive to her carers (fight). [Beth] has not developed the skills to 'self-soothe' or calm down in a way that is not harmful to either herself or those around her.
77The instability of [Beth]'s placements (both kinship placements and residential care placements) and [Beth]'s exposure to aversive events that are beyond her control have lead [Beth] to seek out a secure environment. [Beth] appears to find SWS reassuring and comforting, in part because it assures her that potential abusers cannot reach her. Consequently, [Beth] has established a concrete pattern of sabotaging community based placements in order to be placed in SWS where she does not have to endure unanticipated trauma and abuse.
78I also consider that a number of factors have contributed to the deterioration in [Beth]'s behaviour since 2010:
78.1[Beth] experienced the loss of her grandmother [A] in October 2010 and there were difficulties in having access to [A] in the months prior to this due to [A] being unwell. Within a few months of [A’s] death, on 29 December 2010, [Beth]'s grandfather [P] also died. These losses have had a profound effect upon [Beth] and records show a marked escalation in her behaviour. Every time I have seen [Beth] face to face, she has referred to the loss of her grandmother and frequently cries.
78.2During this period, [Beth]'s mother [K] returned to [the area where Beth was living] after many years of no contact. [Beth]'s mother's contact with her then was very unreliable. [K] was living with a new boyfriend. [Beth] has disclosed very serious sexual abuse by [K’s] boyfriend.
78.3[Beth] has also expressed considerable confusion and grief over the loss of contact with her two brothers. However, she also expresses heightened fear and a history of conflict with both of them.
78.4Some time after [A] died, [Beth]'s father resumed contact with [Beth], but then abruptly rejected her. This was distressing for [Beth] and further destabilised her.
78.5[V] had been unwilling to have access with [Beth] or have ongoing contact.
78.6[Beth]'s brother [J] had been placed in the unit with her for a period of time and this co-incided with a deterioration in her behaviour.
78.7[Beth] moved into adolescence, which is a particularly difficult period for someone who has been exposed to the level of sexual abuse and neglect that [Beth] has experienced.
79Any placement for [Beth] needs to address [Beth]'s needs as follows:
79.1A safe environment - Before [Beth] can be re-established in the community, she must learn to feel safe within the community. In order to do so, [Beth] needs to rebuild her trust with the world around her, which requires her to feel safe. Furthermore, it is vital that [Beth] is, in fact, safe. Unfortunately, at present, the biggest risk to [Beth] is herself and, in particular, the risk to which she exposes herself when she absconds. [Beth]'s current circumstances therefore mean that, in order for [Beth] to be safe, it is necessary that staff are able to contain [Beth]. A facility with the capacity to contain [Beth] will provide [Beth] with the opportunity to deal with distress within a safe environment, rather than absconding and being exposed to harm in the community. This will enable [Beth] to learn how to deal with distress in an appropriate manner, rather than absconding or assaulting others.
79.2A stable environment - [Beth] needs consistency and stability, in terms of staff and routine. Consistency of staff and routine will assist [Beth] to feel safe and to develop attachments and trusting relationships with staff.
79.3Capacity to receive treatment and learn skills - [Beth] needs to receive clinical treatment to address her ability to self-regulate her emotions and behaviours. [Beth] also needs to identify alternative ways to express her fears, confusion and frustration and her ability to engage prosocially with others. [Beth] needs to learn life skills and improve her self-esteem and motivation through participation in activities. None of this is possible if [Beth] absconds from her placement or if staff spend all of their time trying to prevent [Beth] from absconding.[4]
[4]Affidavit of Robyn Maree Miller sworn 22 November 2012.
139After canvassing each of the options for Beth’s ongoing care, Ms Miller further expressed the following opinion concerning the proposed placement:
89Following extensive consultations with legal services, specialist service providers, a number of clinicians, as well as input from the Office of Senior Practitioner for Disability Services and the Child Safety Commissioner,[5] DHS has developed a proposed plan for the future care of [Beth].
[5]As the position was then known.
90The plan involves 1:1 placement in a residential unit. The unit will be located on [the nominated agency]'s campus... Since the unit is located on [the nominated agency]'s campus, there will be minimal exposure to neighbours and maximum access to staff who will be able to provide relief or assistance in the event of an incident.
91The unit will be able to be locked so as to physically prevent [Beth] from absconding. This will also minimise the extent to which staff need to physically intervene with [Beth], thereby reducing risk of harm both to [Beth] and to staff.
92Within the residential unit, there will be a calm down room that will be able to be utilised to enable [Beth] to calm down, rather than abscond (which is her usual behaviour) or assault staff.
93It is proposed that a careful transition process occur, so that new staff of the residential unit will be introduced to [Beth] while she is still in SWS. In addition, staff are already taking [Beth] to [the area in which the residential unit is located] for activities that will continue into the new placement. For example, [Beth] loves animals and has now commenced a [horse] riding for the disabled program …
94The property is fenced, which will enable [Beth] to be outside but still secure. It will also enable [Beth] to have a dog that is specially trained for people with disabilities. This will be carefully planned using a staged approach that is safe and well considered. This would be very significant for [Beth], who has a long and early history of disrupted attachment. [Beth] would love a puppy and it would give her something of her own to care about and to be loved by.
95In the long term, the goal is to gradually reduce the level of security in her unit and to increase [Beth]'s engagement in activities in the community, including resuming attending school or a day program. Discussions have been had with education staff and it is proposed to recruit a special teacher to attend at the residential unit for two hours a day. When [Beth] is ready, the teacher could then move with [Beth] to the special school. My hope is that this will happen within the next three to six months.
96My hope is that [Beth] will be able to maintain safe connection with activities she has recently begun in the community, like [the aforementioned horse riding program], so that she will continue to have time in the community as soon as she moves to the new facility. However, there needs to be close clinical oversight of the transition to ensure that she is ready for each step and experiences success and positive rewards.
97I would also hope that, with consistent nurturing care, [Beth]'s anxiety and volatility will reduce. As this occurs and [Beth] learns more appropriate ways of regulating her behaviour and managing distress, the level of containment will be able to be reduced.
98DHS have developed a plan for supporting [Beth] and responding to her behaviours within the proposed placement. The plan is still being refined. …
99I have spoken directly with Dr Richard Kefford and Dr Helen Driscoll regarding the proposed placement and treatment and support plan. They are unequivocal in their support for the proposed placement and consider that [Beth] requires physical containment in order to enable her to be emotionally contained and for her behaviours to stabilise.[6]
[6]Ibid.
The further evidence adduced before the Court in 2013 described among other things the consequences of Beth’s escape from secure welfare facilities on a series of occasions and in particular her presentation after sexual assaults and other incidents of inappropriate sexual behaviour.
After hearing that evidence together with detailed evidence as to the arrangements proposed for Beth’s care, and having regard to observations made by me on a visit to Beth in her home, I was satisfied as follows:
180 The evidence as a whole shows:
(a)that attempted placements in residential care and SWS have failed to provide for Beth’s care and protection;
(b)the probability is that if the orders are not made, Beth will spend the greater part of her time in involuntary confinement either in SWS or the Youth Justice Custodial Services at Parkville;
(c)that in less supportive environments than the house, Beth has repeatedly engaged in violent and self-destructive behaviour;
(d)that in less secure environments than the house, Beth has repeatedly absconded and upon absconding engaged in seriously self-destructive behaviour including in particular sexual behaviour and exposure to risks from road traffic;
(e)the operation of the house is undertaken in accordance with comprehensive overall plans by expert staff and with a high degree of responsiveness to Beth;
(f)the seclusion involved in the placement is offset by frequent outings which have been and will be progressively increased;
(g)the use of the calm down room is minimised to that which is strictly necessary;
(h) there is no other satisfactory secure facility available for Beth;
(i)the maintenance of stability in her current placement is a very significant factor in maximising the future prospects of Beth’s personal development;
(j)there has been a progressive reduction in self-harmful and destructive behaviour on Beth’s part since she was placed in her current accommodation;
(k)Beth’s personal development has progressed in other respects since she was placed in her current accommodation;
(l)Beth’s own clear preference is to remain in her current accommodation;
(m)Beth has a positive and close relationship with the principal members of staff charged with her care; and
(n)the Secretary has committed very substantial resources and individual staff attention to Beth’s care.[7]
[7]May 2013 Reasons, [180].
Ultimately I concluded:
203I would grant the orders sought substantially on the conditions proposed. I am satisfied on the whole of the evidence that they are in the best interests of Beth. In so concluding I have regard in particular to the following matters:
(a)that they respond directly to a factor recognised by the CYF Act as potentially bearing upon the best interests of a child, namely the desirability of continuity and stability in a child’s care;[8]
[8]Section 10(3)(4).
(b)that they are necessary to supplement the statutory regimes otherwise potentially available to provide for Beth’s care;
(c)that Beth has made significant progress since moving to the nominated agency pursuant to the interlocutory order of Cavanough J and that progress is likely to continue if the orders sought are made;
(d)that if the orders proposed are not made, Beth will be deprived of stable care and will in all probability suffer both significant harm and hindrance to her personal development;
(e)that if such orders are not made Beth has no other reasonable prospects of obtaining satisfactory care and protection and in particular appropriate secure and stable accommodation and care;
(f)that the proposed conditions adequately restrict the use of seclusion and restrictive interventions to what is reasonably necessary and will be applied in accordance with the principle that Beth’s carers will seek to use the least restrictive measures necessary;
(g)that the proposed orders can and should be appropriately limited in duration and subject to review;
(h)that the proposed care will be appropriately planned, supervised and monitored; and
(i)that the Secretary has committed substantial ongoing resources to the care of Beth which have enabled and will continue to enable the arrangements in issue to operate satisfactorily.
204The overall benefit to Beth will be a net benefit in the sense that it will come at the price of material interference with her human rights, including in particular her rights to liberty. Nevertheless, I am satisfied that this interference will be reasonable, necessary and proportional in the circumstances of Beth’s case. In turn, the net contribution of the proposed orders to Beth’s best interests will on balance be very substantial.
205 In Re Thomas[9] Brereton J concluded that:
deprivation of a child’s liberty for protective purposes, as distinct from following conviction of an offence, may be justified and even necessitated by the protection and promotion of the child’s welfare and in those circumstances will not contravene the child’s human rights. Since protection and promotion of the child’s welfare lies at the heart of the parens patriae jurisdiction, I would hold that jurisdiction extends to authorise the orders sought.[10]
I have reached a like conclusion.[11]
[9][2009] NSWSC 217.
[10]Ibid [38].
[11]May 2013 Reasons, [203]-[205] (citations in original).
The November 2013 report
On 4 November 2013 the Secretary filed a report by Linda Saffron, Senior Practitioner, Specialist Services, Disability Services, DHS, together with the following attachments:
· the operative version of Beth’s Behaviour Support Plan;
· Beth’s statutory case plan under s 167 of the CYF Act;
· report from Beth’s treating General Practitioner regarding Beth’s medication; and
· reports from Beth’s treating psychologist and psychiatrist.
Ms Saffron’s report dealt with Beth’s progress with respect to goals in respect of:
· care arrangements;
· community engagement;
· communication;
· care environment;
· emotional and behavioural development;
· self-care skills;
· physical health;
· familial and social connectedness;
· education;
· the implementation of the Behaviour Support Plan; and
· Beth’s views on her current care arrangements.
The report stated the following conclusions and made the following recommendations:
Conclusion:
Beth's placement is achieving the desired goal of providing her with a safe haven where in times of uncertainty she can be safely contained. Beth has commented on numerous occasions that she feels safe at the house.
The level and intensity of support provided to Beth has at times impacted on the health of the team, but a core group of staff remain committed to Beth, providing her with stable and meaningful adult-child relationships. Through these relationships Beth is beginning to feel safe enough to work through her long history of abuse, trauma, grief and loss whilst learning new ways of relating to others.
However, recovery is understandably slow given the extensive abuse and trauma experienced by Beth, combined with her assessed level of intellectual disability. The recovery process is hindered by unforeseeable risks that only become known after an event or trigger has occurred. Staff changes also impact negatively on progress, as do the introduction of new things in the home environment, including potential pets.
Recommendations:
Beth has not yet mastered more adaptive ways of coping with stressors; the risk of harm to herself and others remains high. It is the author’s opinion that:
·Beth needs to remain living in a secured facility. On a number of occasions Beth has threatened or attempted to leave the house. In a less secure environment Beth would be able to enact her threats. Beth's assessed level of intellectual disability would place her at high risk of exploitation.
·The current order needs to continue in order to provide the environment in which Beth's overall progress and positive development can continue.
·In a fight or flight state Beth still has a tendency to put herself at extreme risk of harm. The current model of care minimises the risk of harm to Beth.
·Beth requires intensive two to one support to contain her social anxiety and foster the development of socialisation skills.
·The option for Beth to be given a safe place away from staff in which she can calm down and reflect on her role in negative events is vital. The need for the use of this option is diminishing, albeit slowly.
·Beth cannot live in a shared facility because at this point she is still easily triggered by others and highly demanding of carers' attention and time.
·The BSP contains the essential basics of Beth's behaviour management but needs refinement in order for it to be applicable in a practical sense.
Finally, it is in Beth's best interests for the orders to continue, and to continue in their current form.[12]
[12]Specialist Services Progress Report dated 4 November 2013, prepared by Ms Linda Saffron.
The report of the treating psychiatrist, Dr Paul Hantz, attached to Ms Saffron’s report, is the best evidence available to the Court by way of psychiatric opinion. Dr Hantz accepted and endorsed an earlier psychiatric diagnosis:
Beth has been diagnosed with an intellectual disability (IQ of 42), Reactive Attachment Disorder – Disorganised Type and complex Post Traumatic Stress Disorder … in August 2012. The question of emergent psychotic illness such as schizophrenia has been raised by Dr Bob Adler of the Royal Children’s Hospital though there has been little subsequent evidence to support this.
I understand these diagnoses to have been made in accordance with DSM-IV-TR. It is instructive to set out the diagnostic criteria for Reactive Attachment Disorder of early childhood:
A.Markedly disturbed and developmentally inappropriate social relatedness in most contexts, beginning before age five years, as evidenced by either (1) or (2):
(1)persistent failure to initiate or respond in a developmentally appropriate fashion to most social interactions, as manifest by excessively inhibited, hypervigilant, or highly ambivalent and contradictory responses (e.g., the child may respond to caregivers with a mixture of approach, avoidance, and resistance to comforting, or may exhibit frozen watchfulness)
(2)diffuse attachments as manifest by indiscriminate sociability with marked inability to exhibit appropriate selective attachments (e.g., excessive familiarity with relative strangers or lack of selectivity in choice of attachment figures)
B.The disturbance in Criterion A is not accounted for solely by developmental delay (as in Mental Retardation) and does not meet criteria for Pervasive Development Disorder.
C. Pathogenic care as evidenced by at least one of the following:
(1)persistent disregard for the child's basic emotional needs for comfort, simulation, and affection
(2)persistent disregard for the child's basic physical needs
(3)repeated changes of primary caregiver that prevent formation of stable attachments (e.g., frequents changes in foster care)
D.There is a presumption that the care in Criterion C is responsible for the behaviour in Criterion A (e.g., the disturbances in Criterion A began following the pathogenic care in Criterion C)
Specify type:
Inhibited Type: if Criterion Al predominates in the clinical presentation
Disinhibited Type: if Criterion A2 predominates in the clinical presentation[13]
[13]Emphasis in original.
Likewise the diagnostic criteria for Posttraumatic Stress Disorder were as follows:
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involve actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person's response involved intense fear, helplessness, or horror. Note: In children, it may be expressed instead by disorganized or agitated behaviour
B.The traumatic event is persistently reexperienced in one (or more) of the following ways:
(1)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2)recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur upon awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5)physiologic reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2)efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4)markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (e.g., unable to have loving feelings)
(7)sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D.Persistent symptoms of increasing arousal (not present before the trauma), indicated by two (or more) of the following:
(1) difficulty falling or staying asleep
(2) irritability or outbursts of anger
(3) difficulty concentrating
(4) hypervigilance
(5) exaggerated startle response
E.Duration of the disturbance (symptoms in B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor[14]
[14]Emphasis in original.
Because there was no evidence of psychosis when Beth presented to Dr Hantz he altered Beth’s prescription medicine with a view to avoiding side-effects of weight gain and metabolic problems. Beth’s current medication is as follows:
Ziprasidone 40 mg twice daily, and as required to a maximum of 160 mg daily
Escitalopram 20 mg in the morning
Mirtazapine 15 mg at night[15]
[15]Report of Dr Paul Hantz, Consultant Psychiatrist, Barwon Health, dated 21 October 2013.
Dr Hantz states:
The above medication continues to be prescribed to assist with the management of chronic anxiety and emotional dysregulation subsequent to chronic and severe trauma in addition to a significant intellectual disability. There is good evidence that the medication is of some benefit, especially given the impact of changing medications or poor compliance, in managing some highly challenging behaviours. The benefits of medication will need to be continually evaluated over time and balanced against the potential side effects, of which her guardians have been made aware. The mainstay of her treatment however, remains a consistent psychosocial approach, with continuity of care and a multidisciplinary approach to enhancing psychosocial supports and reducing stressors.[16]
[16]Ibid.
The opinion of Dr Hantz strongly supports conclusions that are otherwise indicated by the evidence as a whole. The most significant of these are that:
· Beth does not simply suffer from a degree of intellectual disability but is significantly affected by chronic anxiety and emotional dysregulation;
· these problems stem from chronic and severe emotional trauma during her childhood; and
· consistency in psycho-social approach to Beth’s care and in particular the provision of continuity of supportive care is of great significance to Beth’s wellbeing.
The evidence on the further hearing
The evidence at trial established the following matters:
(a) Beth’s behavioural problems have responded to the care she has received in the environment established by the Court’s previous order;
(b) the need for lock-ups and restrictive interventions has progressively decreased;
(c) nevertheless Beth remains at risk of ongoing harm. In particular, Beth has demonstrated ongoing propensities to engage in acts of direct self-harm (such as eating glass), to engage in inappropriate and risky sexualised behaviours and to engage in violent behaviours with attendant risks of incidental harm;
(d) if the benefits of the care otherwise provided to Beth are to continue on a sustained basis the staff must themselves have reasonable means to protect themselves from harm occasioned by violent behaviour;
(e) if unrestricted Beth is at a real risk of exploitation by others for sexual and criminal purposes;
(f) if unable to continue in her present care environment, Beth faces a real prospect her personal development will materially suffer;
(g) Beth’s present environment continues to offer a level of ongoing care and support which is not otherwise available to her and in particular is not available either within the environment of a secure welfare service or the youth justice system (in both of which she has previously spent time);
(h) there is some uncertainty as to the funding of services for Beth under the National Disability Insurance Scheme but there is no uncertainty about the provision of such funding up until her 18th birthday;
(i) DHS officers and in particular the staff caring for Beth recognise the need to help her make the transition to adult life;
(j) ongoing efforts are being made to seek to ensure a satisfactory transition occurs from the current arrangements to other arrangements.
It is desirable to amplify the evidence relating to the following matters:
· the ongoing progress in Beth’s behaviours;
· the persistence of factors which support the conclusion that Beth remains at risk of ongoing harm; and
· the outcome of the Court’s visit to Beth.
The evidence as to Beth’s progress
Beth has made progress during her placement in the residence. She began attending school in the second half of 2013 for two days per week for two hours each day, albeit in a classroom without other students. She engages in activities such as lawn bowls with other young adults with disabilities and swimming lessons. Her sleep has improved markedly from getting up approximately eight times per night when initially placed in the facility to sleeping through the night. She is also better able to regulate her behaviour. When faced with a significant disappointment recently, she was upset and withdrew to her room to cry as opposed to damaging property or assaulting staff, as Mr Walker believes would have been her reaction six months prior. Indeed, there has been a significant reduction in property damage generally. To a more modest extent, she has made progress in dressing herself and in reducing her reliance on staff to perform personal hygiene tasks for her.
Beth’s behaviour improved particularly in the period up until November 2013. Incidents of assaults on staff decreased from approximately half a dozen incidents per day when Beth was initially placed in the facility to approximately one per month by February of this year. Additionally, staff no longer find it necessary to confine Beth in what is known as the ‘calm down room’ or seclusion room of the facility; instead, internal doors are locked so that Beth can remain in a limited area of the facility.
Beth’s progress is not necessarily constant. Her behaviour deteriorated during the period of November 2013 to January 2014. Whereas in November 2013 there was approximately one assault incident per week, this increased to approximately three or four per week for December 2013 and January 2014. Ms Saffron and Mr Walker attributed this to the fact that many of Beth’s usual structured activities do not run over the holiday period, which amongst other things means that Beth’s opportunities to socialise are reduced; and to the fact that this time of year triggers family-related traumatic associations for Beth. They further expected that Beth’s behaviour would improve again in February.
The evidence as to indicators of continuing risk
Beth continues to attempt to abscond, albeit less frequently now than when she was first placed in the facility. Were it not for the lockdown facilities, Beth would be able to succeed. Ms Saffron deposed that ‘[i]n a fight or flight state Beth still has a tendency to put herself at extreme risk of harm’, and that ‘Beth’s … intellectual disability would place her at high risk of exploitation’ if she succeeded in absconding.
There is also an enduring risk that Beth will directly harm herself. She has swallowed glass and metal and indicated that she did so to harm herself. There have been numerous instances of such behaviour, which have been serious enough to warrant medical intervention on at least three occasions.
Assaults on staff have decreased significantly but continue, as observed above. Likewise, there has been a decrease in instances of inappropriate sexualised behaviour, but they continue to occur. When attending school, Beth told a 10-year old classmate that she wanted to have sex with him, and she hugged and kissed him. On a separate occasion, while walking into a swimming centre, Beth saw a middle aged man and said she wanted to have sex with him. Ms Saffron is of the view that these incidents have the potential to put Beth and others, particularly young children she might engage with, at risk. Both she and Mr Walker say that Beth lacks ordinary inhibitions.
The visit to Beth
On the afternoon of the first day of the hearing I visited Beth together with my associate and Ms Saffron. Beth expressed the clear view that she felt secure in her home and felt happy living there. In so doing she stated, among other things, that she thought it would be a good place for her to raise children.
On the other hand, Beth expressed an equally clear preference for greater personal freedom in her life. She has enjoyed having visits from a friend. She looks forward to greater social freedom and in particular to turning 18. She would like to go down to the pub in a limousine when she turns 18 and to have body piercings and engage in other activities which she currently cannot. I should add that it is apparent that Beth has a very good relationship with her current carers.
Transition
When Beth turns 18, the Secretary will no longer have guardianship and control of her. It is anticipated that a limited guardian will be appointed for Beth under the Guardianship and Administration Act 1986, with the guardianship role filled by a person from the Office of the Public Advocate, to take effect when Beth turns 18. It is currently unknown what level of funding will be allocated to Beth at that point, which limits the extent of transition planning that can be done. Once she turns 18, the National Disability Insurance Agency (‘NDIA’) will have responsibility for any funding allocated to Beth as a person with a disability. The Secretary is currently in communication with the NDIA to ensure that it is fully informed about Beth’s complex needs as the NDIA creates a plan for Beth. The Secretary recommends that Beth remain resident in the current facility until she turns 19, and that another young person be moved into the facility with her. Beth has had social visits from one young person who could potentially live with her in such an arrangement. If there is insufficient funding for that option, Beth might be moved into a four-bed disability group home, with the transition commencing prior to Beth’s eighteenth birthday. Ms Saffron and Mr Walker took different views as to when Beth might be ready to live in such a group home. In any case, Beth’s mental health care provider will remain the same until she turns 25.
Conclusion
The principles governing the exercise of the parens patriae jurisdiction are set out in my previous decision.[17]
[17]Re Beth [2013] VSC 189. See also X v Sydney Children’s Hospitals Network (2013) 304 ALR 517.
In particular that jurisdiction may be exercised to supplement statutory schemes for the protection and care of children.
The touchstone of the Court’s jurisdiction is a judgment that the orders sought would be in Beth’s best interests.
Section 10(1) of the CYF Act also provides that the paramount criterion to be applied under that Act is the best interests of the child. In turn, the provisions of the CYF Act help to illuminate the notion of best interests in the current context.
Section 10(2) provides that in determining whether a decision or action is in the best interests of the child the need to protect the child from harm and to protect his or her rights and to promote his or her development must always be considered.
Section 10(3) provides for a series of individual considerations that may bear upon the best interests of the child. They relevantly include the following:
(d)the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e)the effects of cumulative patterns of harm on a child's safety and development;
(f)the desirability of continuity and stability in the child's care;
…
(l)the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
…
(n)the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(p)the possible harmful effect of delay in making the decision or taking the action;
…
(r)any other relevant consideration.
Each of the specific considerations listed above tends to support the making of an order in the present instance.
The notion of best interests must also however be informed by recognition that the orders now sought involve a continuing substantial invasion of Beth’s rights. In particular the orders will involve limitations upon Beth’s rights to liberty,[18] privacy,[19] freedom of movement,[20] and potentially freedom from medical treatment without consent.[21] In turn the Court must consider whether these limitations are reasonably necessary and proportionate in the circumstances of Beth’s case.
[18]Charter, s 7(2).
[19]Charter, s 13(a).
[20]Charter, s 12.
[21]Charter, s 10(c).
The cautionary approach which conditions the exercise of the parens patriae jurisdiction, the analogy of the statutory schemes providing for the care of children under the CYF Act, and for the protection of the intellectually disabled under the Disability Act 2006, and the provisions of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) all support the view that the Court’s orders should not go beyond authorising the least restrictive means available to achieve the purpose which the Court seeks to achieve.
In the present case, I am satisfied that the orders proposed are reasonably necessary for the protection of Beth’s interests. I am also satisfied that they will not operate in a manner which interferes with her liberty and rights beyond what is reasonably necessary because of the combination of specific conditions limiting the Court’s authorisation by reference to this consideration, the requirement for provision of care in accordance with a behaviour support plan and a statutory case plan, the requirement that there be independent vetting and supervision of the operation of the order, the provision for a progress report and the reservation of liberty to apply to those having a part in that process of vetting and supervision.
The resolution of further arrangements for Beth’s care when she reaches the age of 18 is not one which the Court can provide for by the current order. Nevertheless it is apparent that Beth remains very vulnerable and that unless she continues to be provided in the foreseeable future with an adequate level of support and care her prospects are bleak.
When this matter initially came before me in 2013 I concluded that an order was appropriate because I was satisfied on the whole of the evidence that it was in the best interests of Beth. The evidence now before me demonstrates that extension of the order is also in Beth’s interests.
Accordingly, I will make the order in the terms sought.
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