Re Sally [No 2]

[2009] NSWSC 1345

CITATION:	Re Sally [No 2] [2009] NSWSC 1345
HEARING DATE(S):	23 June 2009; 30 June 2009; 30 September 2009; 20 October 2009
JUDGMENT DATE :	15 December 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Slattery J at 1
DECISION:	Orders made on 23 June extended until further order.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether existing orders made on 23 June 2009 should be extended.
PARTIES:	Director-General, Department of Family and Community Services and Minister for Family and Community Services (Applicant) Child “Sally” (Respondent)
FILE NUMBER(S):	SC 3346/09
SOLICITORS:	Kerri Phillips, Crown Solicitors (Applicant) Clyllyn Sperling, Legal Aid NSW (Repondent)

1 HIS HONOUR: This is the second judgment I have delivered in relation to Sally. I gave my first judgment on 20 October 2009. In that judgment I recorded the reasons for the Court making orders on 23 June 2009 confining Sally to the premises from that day until further order.

2 Sally is a very troubled 15-year-old, who has a lengthy history of self harm. She has often been violent towards her carers and other people. She has caused serious damage to property at places where she has been resident in institutional care or as an in-patient in hospital.

3 Since my first judgment I have reviewed Sally’s situation at the premises and at three further Court hearings. The first of these hearings was on 18 August 2009. The second hearing took place on 30 September 2009. Before the second hearing I visited the premises on 22 September 2009. The third hearing took place on 28 October 2009.

4 After the initial orders were made on 23 June 2009 I formed the view that Sally should be monitored particularly closely for the first four months of her time at the premises. This is the reason for holding three hearings a little over a month apart.

5 At each of these three hearings I decided not to vary the existing orders in relation to Sally’s confinement at the premises. This judgment analyses the evidence which grounded the decision not to vary the existing orders.

6 The full circumstances of Sally’s history leading to her confinement at the premises are set out in detail in my first judgment of 20 October 2009. The first judgment also discusses the legal principles which justify the making of the exceptional orders for Sally's confinement at the premises. This second judgment considers additional evidence about Sally’s situation at the premises relevant to the continuation of the orders at the three hearings. I will deal with each of these hearings in turn.

The 18 August 2009 Hearing

7 The evidence on 18 August 2009 dealt with all the developments in Sally’s care, therapy, education and confinement at the premises between 23 June 2009 and 18 August 2009. On the basis of this evidence I was satisfied that the orders made on 23 June 2009 did not need to be altered.

8 As with the hearings before the first judgment, the Department relied at this hearing upon the evidence of the Manager Client Services. Her evidence provided the Court with an account of the incidents involving Sally up to mid August 2009.

9 The reporting on Sally in relation to her confinement is assisted by the practice at the premises of issuing monthly reports setting out the overall progress of a resident including permanency planning, perspectives on health, education, emotional and behavioural functioning, social and living skills, peer and family relationships and incidents. At the time of the hearing on 18 August 2009 the monthly report for July 2009 had not been completed, so the manager client services worked from the primary materials which would normally be used to compile the premises monthly report.

10 It is not a sensible to go through every one of the incidents in which Sally has been involved during this or subsequent periods. It is sufficient to deal with the more serious incidents which stand out. These incidents help indicate whether or not Sally is making progress. Some of the incidents in which Sally was involved during this first period up to mid August 2009 were similar to those that occurred before she was confined to the premises. It will not always be useful at these hearings to go into this level of detail about incidents. At the first review hearing though, a full account of the incidents in which Sally was involved gave the Court an insight into her exact daily circumstances at the premises.

11 Sally was involved in many incidents in the first few weeks of her confinement at the premises. Sally came under attention for being disruptive, attacking carers, engaging in self harm and pretending to require medical attention. Examples of these incidents will suffice to indicate their general character.

12 From mid-July there was a series of incidents which showed Sally’s continued destructiveness in relation to property and her continuing propensity to engage unpredictably in violent episodes of self harm.

13 These incidents which had already occurred by the time of the 18 August 2009 hearing suggested to the Court that there was obviously still some danger at the premises from Sally being able to access objects from which she could harm herself. As Sally was being confined to the premises by the Court's orders it is important that her confinement be made as safe as possible. Further safety checks were done on the premises as a result of the Court raising this issue. The evidence is that the premises cannot be made perfectly safe and that complete safety is only possible in a dedicated psychiatric facility. The evidence shows that the staff at the premises are maintaining a high level of vigilance in relation to Sally’s obvious creativity in finding objects to harm herself.

14 This account of the period shows a disturbing level of aggression. At the time of September and October reviews this aggression appeared to have subsided somewhat. The evidence in relation to Sally’s medication and therapeutic support, education and family contact up to the hearing of 18 August 2009 is somewhat simpler.

Medication and Therapeutic Support

15 Apart from providing the capability to stop Sally harming herself, an important reason for having Sally at the premises was for her to commence therapeutic treatment with a community services psychologist (“the psychologist”). He has met Sally regularly since she entered the premises. He sees her usually weekly. I had the benefit of a detailed report from the psychologist at the hearing on 18 August 2009. His report will be discussed below.

16 Once Sally commenced at the premises it was planned to review her medication once fortnightly in consultation with a childhood adolescent psychiatrist attached to aHospital. By the time of the first Court review no change to Sally’s medication had taken place.

17 In the hearing on 18 August 2009 the Court had the benefit of a report from the treating psychiatrist (“the psychiatrist”). Conscious that he had only seen Sally for the first time in July 2009, the psychiatrist counselled that his report should be read in conjunction with the earlier reports of her prior medical practitioners. On the question of Sally’s continued need for care in the environment of the premises he said:

“I would opine that [Sally] continue in an institutional setting and undergo therapy with a qualified psychologist and continue current medication. Involvement of her mother would be an important component of therapy”.

18 Sally has been seen by a dietician at the premises. She is on the same diet plan that has been prescribed for other residents at the premises. The dietician attached to the premises is continuing to monitor Sally’s progress and growth.

19 Sally was assessed by a clinical neuropsychologist, in a number of sessions shortly before Sally’s arrival at the premises. The neuropsychologist’s findings were consistent with the evidence which was previously available to the Court. The neuropsychologist reviewed Sally’s cognitive development in the context of her early exposure to trauma and neglect. The neuropsychologist commenced her assessment of Sally when Sally was an in-patient of an adolescent mental health unit. The neuropsychologist overall impressions of Sally as she, the neuropsychologist described them were:-

“[Sally] presents with many cognitive skills in the Low Average to Average ranges. Specific difficulties were noted in impulse control and self regulation. These findings were consistent with findings provided by a previous placement provider and mental health nursing staff”.

20 The neuropsychologist’s recommendations at the 18 August 2009 hearing confirmed the advantages of Sally remaining in a structured environment such as the premises. The neuropsychologist’s first recommendation was to “provide [Sally] with structure in everyday situations”. A number of specific recommendations made by the neuropsychologist such as a structured reward system, assisting Sally to become aware of the consequences of her actions on herself and others, and allowing Sally to keep track of her achievements and goals have been included in her management plan at the premises.

Family Contact

21 The treating psychologist had recommended that Sally see her mother as an important component of Sally’s therapy. Sally saw her mother at the premises on 29 July 2009. The evidence was that the visit itself was reported to go well. However the manager client services thought a series of critical incidents that Sally experienced commencing about 5 July 2009 were linked to staff preparing Sally for contact with her mother and discussion with Sally about this proposed contact. The manager client services believes that Sally’s behaviour may be linked with Sally’s grief and loss issues with her mother.

22 The change to the premises has improved the prospects for Sally's relationship with her mother. In the past re-engaging with her mother often led Sally into incidents, leading to temporary detention or a hospital admission. As a result no contact would take place with her mother for a while. In contrast at the premises, despite incidents occurring in early July, it was planned that contact would continue to take place between mother and daughter. At the hearing on 18 August 2009 the evidence was of a plan for Sally to have fortnightly contact with her mother at the premises.

Education

23 When Sally went to the premises she was expected to participate in an educational program every school day for 5 hours. Up to the time of the 18 August 2009 hearing Sally was only managing this educational program two hours per day. As with the other residents at the premises, Sally is involved in other daily household activities as part of her Living Skills program. For example she takes part in this program by cooking and preparing lunch and dinner as well as doing chores daily.

Direct Observations by the manager client services

24 The manager client services observed a marked positive change in aspects of Sally’s behaviour and appearance since her lodgement at the premises. By the time of the 18 August 2009 hearing, the manager client services had seen Sally on four occasions since the orders of 23 June 2009. Since then the manager client services has noted that: Sally had removed her facial piercings which were healing well; she was dressing in more feminine clothing; and she looked happier and had lost weight.

Case Planning

25 A case plan was developed for Sally by the time of the August hearing and was tendered in evidence. I reviewed the case plan which addresses the allocation of responsibility for the various objectives to be achieved in relation to the issues faced by Sally. This case plan appears to be comprehensive in relation to Sally’s circumstances. It is of a kind the Court contemplated when the orders of 23 June 2009 were made.

The psychologist’s Report

26 The psychologist provided an interim report on Sally on 10 August 2009. In this report he describes in some detail his initial assessment of Sally’s “complex and chronic history of neglect, abuse, limitations in the development of attachment relationships and subsequent behavioural, social and interpersonal problems”.

27 The psychologist has been seeing Sally on a regular basis since an initial session with her on 29 June 2009. He had five sessions with her between that date and the first Court review of Sally's situation at the hearing on 18 August 2009. These sessions continue.

28 The psychologist comes to his task with considerable professional and clinical experience. He is currently appointed as a psychologist to the Department of Community Services. He has a Master of Psychology (Clinical) from the University of New South Wales and a Doctor of Philosophy (Psychology) UNSW. He has extensive experience in the analysis and treatment of complex mental health presentations that may include significant attachment problems and challenging behaviours of high frequency and intensity. His recent experience is particularly apt for treating Sally.

29 The psychologist indicated that in therapeutic terms he thought benefit in treating Sally could be gained from identifying the cognitive and behavioural process that underly a broad range of targets for intervention which hold a good prospect for change. The appropriate targets for intervention in Sally he thought were the cognitive and emotional underpinnings of Sally’s factitious responses, disruptive and aggressive behaviour, self harm, anxiety and depression. He has planned his therapeutic intervention in Sally's case to target the development of regulatory ability in the face of things represented by Sally to herself as aversive stimuli. While explaining the process in planning her treatment he gave a cautionary warning about his presumed prospects of success:

“It is worthy of note that [Sally] is not, in therapeutic terms, being returned to a level of premorbid functioning. Instead, the current process is one of seeking to support her in learning new cognitive and behavioural processes. The challenge of this task cannot be underestimated.

Similarly the challenge of overcoming the considerable level of anxiety [Sally] currently experiences in engaging other people cannot be underestimated. This is an appropriate target for intervention but, together with a range of characteristics of the presentation, will likely be addressed over many years.”

30 From the psychologist’s perspective the risks to the success of intervention with Sally included a likelihood that she cannot contribute sufficient cognitive resources to engage with the intervention either as a result of limitations in cognitive functioning or lack of motivation.

31 The psychologist laid out some guidelines in relation to all communication with Sally and explained why a treatment plan could not readily be developed in Sally’s case just yet. He was sensitive to the potential for the time he would spend with Sally on a weekly basis to be overshadowed by events that unfold over the remainder of the week. He thought to that end that great benefit would be gained from maintaining better communication across all care and security staff at the premises in an effort to provide consistency in response to Sally as she attempts to change her behaviour. As to developing her treatment plan he said:

“It is also regrettable, that given the severity of the current presentation, and the lack of efficacy of previous interventions, a treatment plan cannot be developed.”

32 As to Sally staying at the premises and the wisdom in her doing so in the short term he expressed a clear view:

“Instead it is suggested that clinical psychological intervention will unfold slowly, on the basis of and in response to, a range of factors as and when they arise. One of these continues to be substantial risk of self harm. For this reason is its suggested that a contained environment such as the premises represents an appropriate treatment setting given the characteristics of the current presentation.”

33 The psychologist’s evidence confirms that he thinks that the therapy is beneficial to her. He is continuing to undertake this therapy for which the premises is the right environment.

The treating psychiatrist’s Opinion

34 The treating psychiatrist also supported Sally’s continued placement at the premises in the medium term. He has reviewed her at the premises since her admission there. Up to the time of the 18 August 2009 hearing the treating psychiatrist had seen Sally on three occasions. He was seeing her approximately fortnightly. An unsigned but approved report of the treating psychiatrist was tendered before me at the first hearing. The treating psychiatrist’s view was that Sally has only limited capacity to engage in intense psychological work at present. He thought that psychological intervention would essentially be slow with the necessary rapport building taking a long time. This is consistent with the psychologist’s opinion. The treating psychiatrist himself had not been able to converse with Sally for more than 15 minutes at a time. She had not yet reached a stage where she could discuss emotionally laden issues with him.

35 Although the treating psychiatrist understands that Sally’s meetings with her mother were traumatic for Sally, he was of the view that a trial of supervised meetings was appropriate.

36 The treating psychiatrist also supported Sally’s continued placement at the premises. This was an important additional consideration in the Court’s decision to continue the orders made in 23 June 2009. The treating psychiatrist concluded:-

I would recommend that Sally continue to remain in this placement over the medium term until she is able to acquire skills of being able to function appropriately in a peer/social context. This is so as the premises has provided Sally with physical and emotional structure consistency and predictability, which prior placements lacked. This has allowed her to experience a degree of a sense of security. This would be an essential first step prior to therapy.”

Summary of the Position at the 18 August 2009 Review

37 As a result of the evidence at the 18 August 2009 hearing I concluded that the orders made on 23 June 2009 did not need to be varied. The evidence before me on that occasion indicated the need for their continuation. The various steps envisaged at the time the orders were made were starting to be implemented. In particular the therapeutic purpose of making those orders, to have Sally treated by the psychologist in a stable environment was commencing to take place. As the evidence below will show much the same situation emerged at the time of the second hearing on 30 September 2009 and the third hearing on 28 October 2009.

The Hearing on 30 September 2009

38 The Court set the second review of Sally’s situation a little over a month after the first hearing. Before the second hearing I inspected the facilities in which Sally was residing at the premises.

The 22 September 2009 Inspection

39 I visited the premises on 22 September 2009. The Court raised the idea of a possible inspection. The parties all submitted that the Court should undertake an inspection. They decided that they did not need to be present individually on 22 September 2009. They joined together to instruct the one legal representative on this occasion.

40 At the inspection I saw all the premises’ facilities. I met some of the supervisory and security staff in charge of Sally. This was a valuable view of Sally's immediate environment. Sally was present at the premises when I conducted this inspection.

Issues Raised by Sally’s lawyer from the 18 August Hearing

41 Two matters arising out of the 18 August 2009 hearing were dealt with at the 30 September 2009 hearing. At the 18 August 2009 hearing, Sally’s separate legal representative, first sought clarification of Sally’s PRN medication regime. He secondly expressed concern about the opinion previously expressed by the treating psychiatrist that Sally had a “background of low IQ”. In relation to this second issue Sally’s Lawyer requested that the treating psychiatrist review the report of the clinical neuro-psychologist of 8 July 2009. The treating psychiatrist opinion on these matters, set out in his report dated 29 September 2009, was available for the 30 September 2009 hearing.

42 On the first issue of Sally’s medication the treating psychiatrist explained that the “main principle of PRN medication is to ensure a proper balance between medication effect and side effects”. He explained that in his view the staff supervising Sally should have discretion to decide which medication to use in a given circumstance, depending on Sally’s behaviour.

43 On the second issue raised by Sally’s lawyer, the treating psychiatrist clarified his earlier report. He indicated that the words “low IQ” in the earlier report should be interpreted as “low average IQ”. He also agreed with the recommendations made by the neuro-psychologist:

“I have also discussed this report with Sally’s psychologist and the manager of the premises. Most of these recommendations have been implemented at the premises. I do not think additional assessments are required at this stage. “

44 The treating psychiatrist’s recommendation about Sally’s continuation at the premises on 29 September 2009 was:

“I stand by my recommendation that Sally continue to remain in this placement over the medium term until she is able to acquire skills as being able to function appropriately in a peer/social context. Overall I would comment that the premises has provided Sally with physical and emotional structure and consistency; and Sally has progressed reasonably in the circumstances.”

45 This opinion from the treating psychiatrist is an important consideration in the Court deciding to continue the orders made in 23 June 2009.

Continuation of Sally’s Monthly Reports

46 At the hearing on 30 September, the Court was assisted by further evidence from the Director of Intensive Support Services (ISS) in her affidavit of 22 September 2009. The Director of ISS’s evidence was partly based on the continuing practice of keeping monthly reports of Sally’s behaviour at the premises. The monthly report is completed after the end of the calendar month. At the time of the September hearing only the August report was available. The Director of ISS’s evidence supplemented the August report with information about incidents in relation to Sally in September.

Evidence about Sally’s Behaviour at the 30 September 2009 Hearing

47 On 30 September 2009 the Department provided the Court with an up to date incident summary for Sally. The examples of incidents of self harm appearing above under the heading, “Continuation of Sally's Monthly Reports”, are from this incident summary. The balance of the summary reveals incidents occurring every day or two that are similar to but slightly less severe in character than the above examples of self harm. Sally’s various behaviours range from being uncooperative, yelling abuse at carers, assaulting supervisory and security staff, tempting to reopen her old wounds, secreting cutlery in her clothes, feigning unconsciousness, abusing hospital and transport staff, and being argumentative with fellow residents of the premises. Although the range of antisocial behaviours listed here is extensive, a general impression of the incidents taken together is that none of them involved a life threatening situation. The evidence as at 30 September 2009 appears to show that overall her behaviour is settling.

48 Sally’s anti-social behaviour seems to have decreased during the period up to the September hearing. She was involved in fewer assaults, less damage to property but she had an increase in PRN use.

49 To those around her Sally seems “happier in herself” by September, 2009. She is working towards her self selected goals. She is expressing more emotion.

Medication, Education and Family Contact

50 In relation to medication, education and family contact, Sally’s progress was steady up to 30 September 2009. Sally continued her therapy sessions her psychologist each Monday. There was no change to her medication. She has seen a dietician again.

51 At the end of September 2009 Sally was still only doing 1-2 hours of her educational program each day. The Department of Education has not yet been able to provide an educational program that meets Sally‘s specific needs. The Department has agreed to provide teaching for Sally at the premises during the middle of Term 4.

52 Sally has continued to see her mother. Incidents generally accompanied their visits. However the visit on 9 September was incident free. The observers of Sally’s interaction with her mother give evidence that re-establishing their relationship is progressing well.

Safety at the premises

53 At the August hearing I had raised the issue of how Sally was able to find on the premises at the premises the objects that she had used to injure herself. As a result of the Court raising this issue the evidence shows that meetings were held at the premises with representatives of the Employee Relations/Occupational Health and Safety Unit of the Department about the issue. A preliminary audit of the premises was being undertaken to address the concerns raised by the Court.

54 The Director of ISS’s evidence was that the premises was not a fully sterile environment. She explained that the premises provides a program offering secure therapeutic care in an environment in the community. The program seeks to teach the residents new skills to replace risk taking behaviour. The balance of exposing the residents to ordinary life experiences must be accompanied by a degree of risk. Even at the premises the residents are able to get items that will cause them injury if misused, just as children may do in the wider community. Supervisory and security staff have so far detected most items before Sally can do serious injury to herself.

55 Sally‘s August Monthly Report at the premises was satisfactory. The report shows that she has high levels of anxiety, she has engaged in frequent incidents of self harm (or thoughts of that) but that she has had trouble adjusting to the discipline of the residence.

The 28 October 2009 Hearing

56 On 28 October 2009 the Court examined further evidence about Sally’s situation at the premises. At this hearing another affidavit of the manager client services was read in evidence. This affidavit gave an account of incidents involving Sally up to 23 October 2009. It is not necessary to go through these incidents in detail. The overall impression gained from a review of these incidents is similar to the impression gained in respect of the history up to the 30 September hearing. Sally’s overall behaviour was settling down.

57 The kinds of incidents in which Sally was involved up to 23 October were instances of aggression to carers, aggravating the wound in her hand, refusal to cooperate with psychologists and medical practitioners, violence to property at the premises, feigned unconsciousness, feigned episodes of self harm and some attempts to swallow small objects.

58 Throughout October 2009 Sally’s medication and therapeutic support remained unchanged. Her medication regime was also unchanged. Sally continued to see her psychologist every Monday. It was reported by the manager client services in evidence that Sally “has started to engage more in her sessions with her psychologist”.

59 At the time of this October hearing Sally was participating in one to two hours of her educational program per day. She was completing the educational worksheets provided to her as part of this program. There still appear to be resources issues about what educational support can be provided to Sally at the premises. It is desirable that these issues be resolved so that Sally does not suffer any educational disadvantage through her detention at the premises.

60 Sally still has a residue of criminal matters to resolve from the time before she was detained at the premises. One of these matters will be heard at the Childrens’ Court. This matter involves charges in relation to damage to a car and assault of a Juvenile Justice Officer while in detention.

61 Finally, at the 28 October 2009 hearing the manager client services observed that Sally is able to identify her feelings more. The manager client services suggests that this has been the result of her sessions with her psychologist. Sally’s at times strained social relationship with the other female resident at the premises is improving. At the time of 28 October 2009 hearing the evidence from the manager client services was that Sally and the other female resident were seeing each other as good friends. Sally continues to be engaged in household duties in accordance with the program set out by the staff at the premises.

62 Overall the evidence of the 2008 October 2009 hearing did not give cause for concern that the Court should alter the orders which had previously been made. No alteration was made. The orders continue.

Conclusion

63 The first four months at the premises have generally met the Court’s expectations when the orders for her detention there were made. At the time those orders were made I contemplated that her situation at the premises would need to be reviewed at a Court hearing approximately monthly during the first few months. Reviews such as the hearings that took place in August, September and October this year need not be as frequent in future. I initially set monthly hearings so that Sally's first reactions to the making of the orders could be monitored closely by the Court. It is possible now to reduce the frequency of periodic reviews a little. I will adjourn the matter for further hearing to 4 February 2010. The further spacing out of these hearings should not disadvantage Sally. The existing orders give the parties liberty to apply to the Court.

64 Where circumstances require an urgent hearing some background knowledge of Sally's history would be an advantage. For this reason I have indicated that the liberty to apply can be exercised before me if I am available. The liberty to apply can of course also be exercised before the Equity duty judge from time to time as required.

65 I made and then continued the current orders for Sally's detention. It is important that my offer of availability especially for emergencies, does not become a limiting factor in Sally's management. It is desirable that some of the periodic future hearings as to Sally's welfare be conducted by other judges in the Equity division.

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