Re Jessica
[2001] NSWSC 1207
•13 December 2001
CITATION: Re Jessica [2001] NSWSC 1207 revised - 11/09/2002 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 5026/01 HEARING DATE(S): 13 December 2001 JUDGMENT DATE:
13 December 2001PARTIES :
Minister for Community Services (P1)
Director-General of the Department of Community Services (P2)
Name suppressed (D)JUDGMENT OF: Hamilton J
COUNSEL : G W Moore (P1 & 2)
R Harper, Solicitor (D)
K L Renshall, Solicitor (Child)SOLICITORS: I V Knight (P1 & 2)
Kim Cull (D)
Kathryn Renshall (Child)CATCHWORDS: FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for detention and medical treatment of infant using reasonable force if necessary - Whether order for wardship necessary. LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 CASES CITED: DOCS v Y [1999] NSWSC 644
Department of Health and Community Services v J W B and S M B (Marion's case) (1992) 175 CLR 218
Kay v Minister for Youth and Community Services [1982] 1 NSWLR 311DECISION: Orders made authorising the young person being transported to and detained in a named hospital and having medication administered to her with the use of reasonable force if necessary without an order that the young person be made a ward of the Court.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 13 DECEMBER 2001
5026/01 RE JESSICA
JUDGMENT
1 HIS HONOUR: This is a distressing and extreme case. The subject of it is a young person called for the purposes of the proceedings "Jessica", who is 15 years of age. She is subject to uncontrollable violent behaviour. Despite considerable psychiatric attention, it has not been established whether this is due to an identifiable psychosis as opposed to some other cause. It is not established that she is a mentally ill person within the meaning of the Mental Health Act 1990. However, her care and treatment is a subject matter that is very problematical. She has previously been the subject of orders of this Court made in these proceedings on various occasions by Barrett J and on at least two occasions by Campbell J. In Campbell J's judgments of 15 November and 29 November 2001, both unreported, there is considerable detail as to her behavioural manifestations and the regime created for her treatment, which I need not repeat in these reasons for judgment.
2 The matter has for some time been on course toward the regime which I am asked today to put into effect by orders. It was anticipated by Campbell J that this was the direction in which the matter was moving, although, of course, I retain and must exercise, I appreciate, a judicial discretion concerning the matter today, as would Campbell J, if his Honour were himself dealing with the matter today. However, there is no reason to do other than pursue the path along which his Honour was moving, unless the evidence now available indicates some other course.
3 Miss J E Moore's previous careful evidence in the matter has been supplemented by updating evidence laid before me today. Nothing has occurred to diminish the necessity of the course then foreshadowed. I have also before me today a report dated 6 December 2001 by the director of the mental health programme of the hospital in which Jessica has been residing. The necessity for the course now to be adopted is reinforced by the following portions of the report:
- “7 Is it desirable for Jessica to be held in a ‘secure’ unit such as the one proposed?
- At this point in time I cannot see any practical alternative. The only other secure places are general adult psychiatry wards and places of detention. The former contain psychotic and often aggressive patients and are not suitable for a 15 year old child with no mental illness and poor judgment. The latter are clearly inappropriate for a disturbed child who is not a criminal.
8 What is your recommended treatment plan?
I believe Jessica should be placed in a safe and secure environment. There should be a comprehensive management plan aimed at reducing her outbursts of uncontrolled behaviour. This should combine careful and caring restraint, repeated attempts at de-escalation by staff with whom she is familiar, rewards for successful and adaptive behaviour, resumption of education and the teaching of living skills. I would expect this form of ‘nurturing’ environment to gradually bring about maturation and improvement in Jessica's willingness and ability to control her behaviour.
I expect that sedation will continue to be necessary at times and would hope that with administration in regular planned fashion some decrease in frequency of physical restraint would follow.
Jessica has allegedly been exposed to a variety of physical abuses that often result in personal distress and dysfunction. Psychological treatments are believed to be helpful in these situations, but success depends on a degree of psychological understanding that Jessica may not possess. In any case this cannot be determined until her behaviour is more contained.Given the extreme seriousness of the situation, the difficulty in absolutely excluding psychotic illness and the empirical use of antipsychotic agents and anticonvulsants in moderating behaviour of the kind exhibited, Jessica has been prescribed regular doses of these drugs. I would continue with these at present.
9 It is not possible to say how long such a plan will be necessary, but it is unlikely that response will be rapid. I would expect several months as a minimum.
12 If not placed in a secure unit Jessica does impose a threat to her own safety and that of others by the recklessness of her actions, her apparent failure to recognize the risks they create and her unwillingness (or incapacity) to stop.”……
4 The orders that have been put forward by Mr G Moore, of counsel on behalf of the plaintiffs, are consented to by Mr R Harper, solicitor for the defendant, who is Jessica's mother, and by Ms K Renshall, who appears as separate representative of the young person. Miss Renshall has not sought instructions from the young person or taken her wishes into account. In reluctantly taking the course of not opposing the making of the extreme orders sought, she conveys to the Court that it is her view that the course is necessitated and the taking into account of the young person's wishes is precluded as a practicable course by the extremes of the young person's behaviour demonstrated by the evidence. It is important to note that Ms Renshall has assured the Court that she has had the highest degree of cooperation from the plaintiffs and the staff of the institutions in which the young person has been in keeping herself abreast of the young person's progress and has been able to participate as appropriate in consultations concerning the ongoing situation. The Court relies heavily on this assurance and on Ms Renshall continuing to be kept in that situation in making the orders that are proposed.
5 Whilst it appears from the evidence that something in the vicinity of two months may well not be long enough for the regime to effect a real change in Jessica's condition, nonetheless Ms Renshall has asked that the matter be brought back before the Court no later than early next term to provide a certain occasion on which the Court may review the progress of the situation. This proposal of Ms Renshall's has been incorporated in the minutes and will, of course, be adopted by the Court, although the Court would in any event, acting in the role it is, receive any approach concerning the matter from a properly interested party, including Ms Renshall. I propose to formalise the situation by including in the orders formal liberty to apply. I add that, in this instance, that liberty should be exercised before me if I am available, so that, if it is possible, there may be some continuity in the judicial supervision of the matter.
6 The only other question to which I need advert is the question of the powers of this Court to make the orders sought. I have been referred by Mr Moore to the decision of Austin J in this Division in DOCS v Y [1999] NSWSC 644 and his Honour's compendious account of the current state of the jurisdiction of this Court as parens patriae with respect to children and, in particular, the state of its powers in respect of compulsory medical treatment. This is dealt with by his Honour at [98] to [103]. That passage in his Honour's judgment was directly in point in his decision since he was in that case dealing with the compulsory administration of treatment to a young woman suffering from the condition of anorexia nervosa. In that case his Honour did make the young person a ward of Court and at one stage I wondered whether it was appropriate for the Court to make extreme orders of the type sought without the making of a wardship order. However, in this case, as opposed to that case, there is a regime of parental responsibility in force. In this case, unlike the case before Austin J, interim parental responsibility had been granted by a Children's Court to the Minister under the Children and Young Persons (Care and Protection) Act 1998. If the Court can make the proposed orders without the young person being made a ward of Court it is desirable that that be done, as there is already in force a regime where a representative of the State, namely, the first plaintiff, being the Minister, is vested with parental responsibility, and it is undesirable that there be a second and possibly different regime in force with respect to the guardianship of the same child.
7 However, Mr Moore has drawn to my attention that there is adequate authority that in modern practice aspects of the parens patriae jurisdiction may be and are exercised by superior Courts vested with the jurisdiction without the relevant child or young person being made a ward. This proposition has the authority of Brennan J (as his Honour then was) in Department of Health and Community Services v J W B & S M B (Marion's case) (1992) 175 CLR 218 at 280. The situation had been earlier dealt with by Helsham CJ in Eq in Kay v Minister for Youth and Community Services [1982] 1 NSWLR 311 (and see also DOCS v Y per Austin J supra at [87]). In these circumstances there is in my view no doubt that it is appropriate on the evidence before me for me to make the orders carefully drawn by counsel for the plaintiffs and regretfully consented to after consideration by the defendant's solicitor and the child's special representative. I must say that bearing in mind this young lady's distressing problems, I have been most impressed on the evidence by the care and effort that has been devoted to this matter and I thank everybody involved for the manner in which it has been brought forward and presented to me. There will be orders in accordance with short minutes initialled by me and placed with the papers. I direct that orders 2 to 5 be entered forthwith. The proceedings are adjourned to 14 February 2002 at 9.30am before me.
10