The Public Advocate v C, B
[2019] SASCFC 58
•24 May 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE PUBLIC ADVOCATE v C, B
[2019] SASCFC 58
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
24 May 2019
MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - OTHER MATTERS
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE
TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT
MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - APPOINTMENT
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS - APPLICABILITY OF REMEDY
Appeal against a decision of a single Judge of the Supreme Court that BC, the respondent, was unlawfully detained in the locked ward of an aged care facility by reason of a decision of the Public Advocate, the appellant.
The appellant was appointed as limited guardian of the respondent for the purposes of his accommodation and lifestyle by the South Australian Civil and Administrative Tribunal (the Tribunal). The respondent is an elderly man with dementia of moderate severity, who, for the purposes of s 29 of the Guardianship and Administration Act 1993 (SA) (the Act), does not have mental capacity.
The issues to be determined concern:
1. whether the Act, in conferring the powers set out in s 32, impliedly abrogates the general law powers of a guardian to detain, and use other force, when assuming responsibility for the affairs of a protected person; and
2. whether the conditional liberty occasionally granted to the respondent precludes a conclusion that he was unlawfully detained during such periods that permission to leave the locked ward was not given.
Held by Kourakis CJ (Kelly and Hinton JJ agreeing), dismissing the appeal:
1. Any restraint on liberty which can be imposed by an order of the Tribunal pursuant to s 32 of the Act cannot be lawfully authorised by a guardian acting under a limited or full guardianship order made pursuant to s 29. The words 'subject to this Act' in s 31 must be given full effect.
2. The order of the Tribunal made pursuant to s 29 of the Act placing the respondent under the limited guardianship of the appellant did not empower it to authorise the commission of the wrongs of false imprisonment or trespass against the person. The Judge was right to issue habeas corpus and make the declaration he made.
3. The restrictions placed on the respondent constituted the torts of false imprisonment and/or trespass and were therefore unlawful unless otherwise authorised by law. The Judge was right to find that the respondent's movement was restricted by his residence in the unit.
Guardianship and Administration Act 1993 (SA) s 5, s 29, s 30, s 31, s 32; Supreme Court Act 1935 (SA) s 17; Advanced Care Directives Act 2013 (SA) s 9, s 12, s 13, s 23, s 45, s 46, s 46A; Lunacy Act 1898 (NSW) s 172; Ordinance No 2 of 1847 ; Lunatics Act 1864 (SA); Supreme Court Act 1855-6 (SA); Equity Act 1866-7 (SA); Mental Defectives Act 1913 (SA) Division 5 Part 4, Part 5; Mental Defectives Act 1935 (SA); Mental Health Act 1977 (SA) s 26, s 27, Part 5, Division III; Guardianship Act 1987 (NSW) s 14, s 21, s 21A, s 21C, 22; Guardianship and Administration Act 1990 (WA) s 45, s 47, s 50; Family Law Act 1977 (WA); Guardianship and Administration Act 2000 (Qld) s 33; Guardianship and Administration Act 1995 (Tas) s 25, s 28; Guardianship and Administration Act 1986 (Vic); UN General Assembly, International Covenant on Civil and Political Rights, 19 December 1966, United Nations, Treaty Series vol 999, Article 9, referred to.
McLaughlin v Fosbery and Others (1904) 1 CLR 546, distinguished.
BC v The Public Advocate and Ors [2018] SASC 193; Re WM (1903) 3 SR (NSW) 552; JD, Re [2003] QGAAT 14; Antunovic v Dawson (2010) 30 VR 355; Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44; Bird v Jones (1845) 7 QB 742; Watson v Marshall (1971) 124 CLR 621, discussed.
MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - APPOINTMENT
BC's wife, W, seeks permission to appeal against the decision dismissing her application that a litigation guardian be appointed.
Held per Kourakis CJ (Kelly and Hinton JJ agreeing), refusing permission to appeal:
1. The medical report relied on in support of the application did not specifically address BC's understanding of the substantive proceedings. Therefore, the appeal would have limited prospects because of the deficient evidential basis.
2. No question of principle is involved.
3. There is no present utility in the application.
WORDS AND PHRASES CONSIDERED/DEFINED
"mental capacity", "false imprisonment", "trespass", "habeas corpus", "limited guardian"
THE PUBLIC ADVOCATE v C, B
[2019] SASCFC 58Full Court: Kourakis CJ, Kelly and Hinton JJ
KOURAKIS CJ: This is an appeal by the Public Advocate against declarations made by a Judge of this Court that the first respondent, BC, was unlawfully detained at the Barossa Village Aged Care Facility (the Barossa Village) by reason of the decision of the Public Advocate made on 5 October 2018. BC is a 95-year-old man who suffers dementia of moderate severity. He resides in the ‘Memory Support Unit’ of the Barossa Village, which is a locked ward (the locked ward). It is accepted for the purpose of these proceedings that he does not have capacity to make decisions about his own health, safety and welfare, including where he should reside. Therefore, he is a person without mental capacity for the purposes of s 29 of the Guardianship and Administration Act 1993 (SA) (the Act).
On 27 September 2018, the South Australian Civil and Administrative Tribunal (The Tribunal) appointed the Public Advocate to be BC’s limited guardian for the purposes of his ‘accommodation and lifestyle’. BC’s wife was appointed his limited guardian for the purposes of his health care.
In an exercise of its limited guardianship, the Public Advocate, on 5 October 2018, directed that BC reside in the locked ward. The Judge was satisfied that the conditions under which BC resided in the locked ward restricted his freedom of movement. The locked door of the unit could only be opened by entering a code, not known to BC, into a keypad or by swiping a card, which BC did not have, over an electronic sensor.
The Judge found that the direction of the Public Advocate that BC reside in the locked ward was not authorised by its grant of limited guardianship. For that reason the Judge declared that BC had been unlawfully detained there, and that a writ of habeas corpus should issue.
For reasons which appear below the Judge was right to find that BC’s movement was restricted by his residence in the unit. Those restrictions constituted the torts of false imprisonment and/or trespass and were therefore unlawful unless otherwise authorised by law. For reasons which I also develop below, the order of the Tribunal made pursuant to s 29 of the Act placing BC under the limited guardianship of the Public Advocate did not empower it to authorise the commission of the wrongs of false imprisonment or trespass against his person. The Judge was therefore right to issue habeas corpus and make the declaration which he did. I would dismiss the appeal.
The legislation
Personal autonomy and deference to the decisions which the protected person would have made are the most important of the principles prescribed by s 5 of the Act:
5—Principles to be observed
Where a guardian, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act—
(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.
Those considerations control both the exercise of the Tribunal’s power to appoint a guardian pursuant to s 29 of the Act and, in turn, the decisions made by the guardian pursuant to that appointment. Section 29 of the Act provides:
29—Guardianship orders
(1) If the Tribunal is satisfied (whether on an application made under this Division or on its own motion after revoking an advance care directive under the Advance Care Directives Act 2013)—
(a) that the person the subject of the application has a mental incapacity; and
(c) that an order under this section should be made in respect of the person,
the Tribunal may, by order, place the person under—
(d) the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be appropriate, the full guardianship,
of such person or persons as the Tribunal considers, in all the circumstances of the case, to be the most suitable for the purpose.
(2) A limited guardianship order is an order by which the Tribunal specifies the particular aspects of the protected person's care or welfare that are to be the responsibility of the appointed guardian or guardians.
(2a) The Tribunal may appoint a person (other than the Public Advocate) to be an alternative guardian who is, in accordance with section 31B, to take over full or limited guardianship, as the case may be, in the event of the death, absence or incapacity of a particular guardian (the original guardian).
(3) A guardian must be a natural person.
(4) The Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if the Tribunal considers that no other order under this section would be appropriate.
(5) A person who cares for the protected person on a professional basis cannot be appointed as a guardian of the person.
(6) A guardianship order may be subject to such conditions or limitations (including a limitation as to the duration of the order) as the Tribunal thinks fit and specifies in the order.
(7) A condition or limitation imposed under subsection (6) should, as far as is reasonably practicable, be consistent with the terms of any advance care directive that the protected person has given.
The nature of the two limited guardianship orders made by the Tribunal with respect to BC to which I earlier referred are best understood, in the terms used by s 29(2) of the Act itself, as the conferral of ‘responsibility’ for the accommodation and health care respectively of BC.
That responsibility includes in the first instance making arrangements which authorise others to provide, without the use of force, health care, recreational services and accommodation to BC.
Section 31 of the Act provides for the powers of guardians as follows:
A person appointed as a guardian under this Part has and may exercise, subject to this Act and the terms of the Tribunal's order, all the powers a guardian has at law or in equity.
It follows from the text of s 31 that the Act has not abrogated the general law concerning the powers of a guardian, but rather has provided that persons appointed a guardian under the Act can exercise those powers. The Act does not exclusively deal with the appointment and the powers of guardians – it is facilitative. Pursuant to s 17 of the Supreme Court Act 1935 (SA), this Court has the jurisdiction of Chancery and the common law courts of England and, therefore, the power to appoint a guardian of persons of unsound mind in the exercise of its equitable jurisdiction. However, that jurisdiction is now rarely exercised because of the legislative reform of the law of mental health in the 20th century.
As will be seen, the general law recognised the power of a guardian to use force, to detain a protected person and to authorise others to do the same. The question is whether the specific provisions of s 29 and s 32 of the Act have abrogated that general law power.
It is common ground that the guardian’s responsibility under s 31 of the Act extends to making applications to the Tribunal for an order, pursuant to s 32 of the Act, authorising the use of reasonable force for the purpose of ensuring the proper medical treatment and day to day care of the protected person. In issue in these proceedings is whether the guardian can, without any such authorisation, use that force himself or herself, or authorise others to do so.
Pursuant to s 32 of the Act, the Tribunal may authorise the detention and forceful medical treatment of a protected person. It is convenient to first set out only subsections (1), (1a) and (2):
(1) The Tribunal, on application made by an appropriate authority in respect of a person to whom this section applies—
(a) may, by order, direct that the person reside—
(i) with a specified person or in a specified place; or
(ii) with such person or in such place as the appropriate authority from time to time thinks fit,
(whether or not the person or place is a person with whom, or the place in which, the person usually resides) according to the terms of the Tribunal's order; and
(b) may, by order, authorise the detention of the person in the place in which he or she will so reside; and
(c) may, by order, authorise the persons from time to time involved in the care of the person to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.
(1a) An application made by a person under this section may be heard at the same time as his or her application for appointment as guardian.
(2) The Tribunal cannot make an order under subsection (1) unless it is satisfied that, if such an order were not to be made and carried out, the health or safety of the person or the safety of others would be seriously at risk.[1]
[1] An order made pursuant to s 32 of the Act may be varied or revoked pursuant to s 32(5).
It will be observed that s 32(1)(a) empowers the Tribunal to give directions as to where and with whom a protected person resides. A direction that a protected person reside at a specified place or with a specified carer bears some similarity to the consensual arrangements for accommodation which a guardian may make, and to the similarly consensual arrangements which can be made under the Advanced Care Directives Act 2013 (SA) (the Care Directives Act). They are arrangements to which the protected person may have consented. The guardian’s authorisation provides a justification for the provision of services which would require an informed consent which the protected person does not have a capacity to give. However, unlike the accommodation arrangements which a guardian may make under the authority conferred by s 31 of the Act, a direction of the Tribunal under s 32(1)(a) also has statutory consequences which I will shortly mention. Subparagraphs (b) and (c) of s 32(1) expressly contemplate further orders, beyond a direction given pursuant to subparagraph (a), authorising the use of force to both enforce a residence direction and to ensure the provision of medical, dental and day to day care.
The direction which the tribunal may make pursuant to s 32(1) of the Act is an administrative order upon which the later subsections of s 32 act to change the rights and liabilities of both the protected person and others. The order constrains the protected person’s liberty, it authorises others to take what would otherwise be steps involving unlawful force to ensure compliance with the direction, and it makes it an offence for a third party to remove the protected person from that place. The arrangements which a guardian can make cannot have that effect.
I now turn to subsections (4) and (6) of s 32, which enumerate the powers which may be exercised by police, and persons in charge of premises, with respect to a person who is subject to a placement or detention order made by the Tribunal.
(4) While an order for the placement or detention of a person is in force under this section—
(a) the appropriate authority or a member of the police force may enter any premises and take the person, or cause him or her to be taken, using only such force as is reasonably necessary for the purpose, to the place in which he or she is to be placed or detained, and any person who assists the appropriate authority or member of the police force in the matter incurs no liability for doing so; and
(b) the person in charge of the premises in which a person is being detained pursuant to the order may take, or cause to be taken, such action as is reasonably necessary for the purpose of preventing the person from leaving the premises or for bringing the person back should he or she leave without lawful authority or excuse; and
(c) any person who takes any such action under paragraph (b) in good faith and with the authority of the person in charge of the premises incurs no liability for doing so.
…
(6) Where a member of the police force has reasonable cause to believe that a person who is being detained in any place pursuant to powers conferred under this section is unlawfully at large, the member may, without warrant, enter any place in which he or she believes on reasonable grounds that the protected person may be and apprehend the person, using only such force as is reasonably necessary for the purpose, and may return the person to the place in which he or she is being so detained.
Although the word ‘placement’ is not expressly defined, I would construe it to at least include a direction as to residence given by the Tribunal pursuant to s 32(1)(a) of the Act. Section 32(4)(a) empowers only the return of a protected person subject to a placement order to the place of residence, but s 32(4)(b) authorises the use of force by a person in charge of premises to prevent a protected person leaving those premises if the Tribunal has ordered his or her detention there.
Section 32(7) of the Act creates an offence of wrongfully removing a person from a place of detention:
(7) A person who, without lawful authority or excuse, removes a person who is being detained in any place pursuant to powers conferred under this Act from that place, or aids or abets the person unlawfully to leave that place, is guilty of an offence.
Maximum penalty: $10 000.
The provisions of the Act may be contrasted with the provisions of the Care Directives Act. The objects of the Care Directives Act set out in s 9 also emphasise the right of personal autonomy.
Section 12 of the Care Directives Act prohibits the inclusion in an advance care directive of a direction which is unlawful or would require an unlawful act to be performed.
Section 13 of the Care Directives Act provides that an advance care directive does not have effect as a power of attorney. The legislative note to s 13(1) reads:
A power of attorney under the Powers of Attorney and Agency Act 1984 is required if the substitute decision-maker is to deal with the financial and legal affairs of the person giving the advance care directive.
Section 23 of the Care Directives Act allows for the private appointment of a person who can authorise others to provide health care and to make consensual arrangements for their accommodation:
(1) Subject to this Act and to any provision of the advance care directive, a substitute decision-maker appointed under an advance care directive may make any decision that the person who gave the advance care directive could have lawfully made in respect of the following areas:
(a) health care (other than a kind of health care declared by the regulations to be excluded from the ambit of this paragraph);
(b) residential and accommodation arrangements;
(c) personal affairs.
(2) Nothing in subsection (1) authorises a substitute decision-maker to make a decision of a kind that requires the substitute decision-maker to have been given the person's power of attorney unless the required power of attorney has in fact been given to the substitute decision-maker.
Note—
A power of attorney cannot be given by an advance care directive—see section 13.
(3) An advance care directive does not authorise a substitute decision-maker to perform functions that the person who gave the advance care directive has as a trustee or personal representative of another.
(4) Despite any provision of an advance care directive to the contrary, an advance care directive does not authorise a substitute decision-maker to refuse the following:
(a) the administration of drugs to relieve pain or distress;
(b) the natural provision of food and liquids by mouth.
…
Section 45 of the Care Directives Act confers a wide authority on the Public Advocate to mediate or arbitrate disputes about the scope of an advance care directive. Alternatively, the Public Advocate may choose to refer a dispute to the Tribunal,[2] and may refer a question of law to the Supreme Court.[3]
[2] Advance Care Directives Act 2013 (SA) s 46.
[3] Advance Care Directives Act 2013 (SA) s 46A.
Common law powers of guardians
To determine the scope of the common law powers of a guardian to which s 31 of the Act refers, it is necessary to refer to relatively old authorities, because for most practical purposes those general law powers have largely been superseded by specific orders made under statutory mental health regimes. However, the enquiry into the general law powers of guardians of persons of unsound mind need not extend beyond the decision of the High Court in McLaughlin v Fosbery and Others (McLaughlin).[4]Mr McLaughlin was a solicitor who was declared of unsound mind by the Chief Judge in Equity of the New South Wales Supreme Court, exercising the lunacy jurisdiction of that Court. The order appointed Mr McLaughlin’s wife to be ‘the committee of his person’, that is to say, his guardian with respect to his personal care but not his property. In that capacity, Mrs McLaughlin signed an order directing a medical practitioner, who was the superintendent of a private hospital, to receive him into the hospital. Annexed to Mrs McLaughlin’s order was the declaration of the Chief Judge. Armed with those orders, police officers confronted Mr McLaughlin in his home where they were met with the following exchange:[5]
Police:We have come from Dr Vause he wishes to see you at his hospital.
Mr McLaughin: I do not believe you; show me a letter from Dr Vause; how dare he send anyone to me on such an errand.
Police officer: We’re the police; we have orders to bring you out there, and if you do not come quietly we shall put mufflers on you, and bring you by force.
Mr McLaughlin protested with ‘some vehemence of language’.
Police officer: Are you going to come quietly, or shall we have to put the mufflers on you?
Mr McLaughlin: I certainly am not going quietly, it would be an act of lunacy were I, being a solicitor, to leave my house willingly under such circumstances, and proceed to a private lunatic asylum. You must remove me by force if you are determined to do so, and take the consequences.
[4] (1904) 1 CLR 546.
[5] Extracted from McLaughlin v Fosbery and Others (1904) 1 CLR 546 at 548.
And with that response the mufflers were placed on Mr McLaughlin and he was taken to a private hospital. Mr McLaughlin remained confined there for some time, but eight months later the Court found that he had recovered and revoked the guardianship order. True to his word, Mr McLaughlin promptly brought an action in trespass against the police officers who had detained him. They sought a stay of the proceedings pursuant to s 172 of the Lunacy Act 1898 (NSW) (the Lunacy Act), which provided that no suit shall lie against any person for anything purporting to be done for the purposes of carrying out the provisions of the Lunacy Act, so long as that person acted in good faith and with reasonable care. Section 172 also empowered the Court to summarily stay procedures if it determined that there was no reasonable ground for alleging a want of good faith or reasonable care.
When the Supreme Court stayed Mr McLaughlin’s action he appealed against its order to the High Court. At issue was whether the conduct of the police was in furtherance of the Lunacy Act. The High Court held that the police had not acted for the purpose of carrying out the provisions of the Lunacy Act, but in furtherance of the general law powers of Mrs McLaughlin, as Mr McLaughlin’s guardian. The Lunacy Act authorised the receipt of persons into a psychiatric hospital, and immunised the hospital and its employees from suit. It also empowered police and justices to apprehend and commit a person of unsound mind, and authorised his or her transportation, to such a hospital. However, the High Court held that in executing Mrs McLaughlin’s direction the police were not exercising any of those statutory powers but acting pursuant to the general law powers of a guardian delegated to them by Mrs McLaughlin. It is in that context that the Court came to explain the general law powers of a guardian of the person of unsound mind. In its reasons the Court gave this summary of the general law powers of a committee of the person:[6]
… There is singularly little to be found in the books as to the authority of the committee of the person of a lunatic to dispose of his liberty. The form of order now in use in England is – ‘We do commit and grant the custody of the person, regulation and government, of the said A.B. to’ the committee. And the condition of the bond prescribed to be given by the committee is that he ‘shall carefully provide for the person of the said A.B. and for his safety … and shall in all things demean himself as the careful and faithful grantee and committee of the person of the said A.B.’ The committee is not in the position of the keeper of a prison, nor does the lunatic necessarily reside with him, but he is responsible for the lunatic’s comfort.
It is said that he may settle and change at pleasure the lunatic’s residence, which may be either with himself or with some other suitable person for whom he is responsible; Wood Renton on Lunacy, 341, 345. Sec. 16 of the Act now under consideration assumes that he may select a licensed house as the place of enforced residence. It is plain, therefore, that the committee of the person has at common law some power of control over the liberty of the lunatic. It is not material for the present purpose to consider in detail the limits and conditions within which that power may be exercised. In practice they are determined by the Judge or other judicial officer exercising the powers of the Court, and as a matter of expediency it is certainly desirable that any proposed restraint of liberty should have judicial sanction before it is used. For the purpose of determining the liability of the respondents in this action it is sufficient to say that the committee, when appointed, has an authority vested in him to cause the removal of the lunatic from one place of residence to another if circumstances justify such action. And we think that any persons called upon to assist him in effecting such removal are entitled to protection from liability, on a principle analogous to that which protects persons called upon to assist an officer of police in the execution of a warrant. There may perhaps be circumstances which would dis‑entitle them to claim such protection, but if they honestly believe that the committee is merely calling for their assistance in the exercise of his legal authority they are not liable. The suggested plea would, therefore, in our judgment, be a good defence to the action.
[6] McLaughlin v Fosbery (1904) 1 CLR 546 at 563-564.
The Court dismissed Mr McLaughlin’s appeal because, there being no evidential basis to find that the police officers were not acting genuinely and reasonably in following the directions of Mrs McLaughlin as guardian, the stay was a proper exercise of the Court’s inherent power to stay vexatious actions.
The following may be taken from the Court’s consideration of the general powers of a guardian:
(a)There was little to be found in the authorities circumscribing the scope of the power of a guardian to detain a protected person (a century later such authority has, with the passage of time, receded even further into legal history and in any event would not reflect contemporary community values on the issue of care of persons with mental illnesses).
(b)A reason for the dearth of authority may have been the widespread practice of guardians from long ago to obtain judicial sanction before restraining the liberty of a protected person.
(c)The general law accepted as lawful the use of force by police and others to detain a protected person on the authority privately given by the guardians. The sanction of a court or administrative tribunal is of course a matter of public record. The undesirability of private warrants and the public interest in the making of detention orders by the independent and transparent decisions of courts and tribunals is so obvious that it requires no explanation. That clear public policy preference explains the practice referred to in (b) above, and informs the construction of the Act.
Construction of the Act
The Judge approached the question of construction consistently with the principle of legality:[7]
[29]Fundamental assumptions deeply embedded in the foundational structure and rules of the common law recognise that certain rights and freedoms are not to be infringed except by clear lawful authority. Some of the most important fundamental rights are the rights to enjoy personal liberty, freedom of movement and privacy (at least in the sense of freedom from invasive searches).
[7] BC v The Public Advocate & Ors [2018] SASC 193 at [29].
The Solicitor General submitted that the Judge was wrong to do so because the general law had always accepted the abrogation of the right to liberty of persons of unsound mind:
13.... The appellant’s essential contention is that Stanley J erred with respect to the construction of the [Act]. Specifically, his Honour held that having regard to the underpinning common law principle of legality, s 32 confers the exclusive power to decide where a protected person is to reside and the conditions of that residence, and that ss 29 and 31 confer no such power. …
…
14.1. First, his Honour did not examine how the principle of legality informs the construction of a statute that on its face ‘picks up’ common law powers that carry their own restrictions on autonomy of protected persons in the field of care and protection. The protective jurisdiction is a product of the common law as is the principle of legality. It is reposed in various judicial and quasi-judicial bodies, including the Supreme Court. Invocation of the principle of legality as a base-line common law principle that informs the construction of a statute cannot occur absent recognition of other common law principles that equally inform the question of construction, specifically in this case, the common law powers of a guardian.
(emphasis in original; citations omitted)
However, the passage cited above from McLaughlin shows that the Court of Chancery, which supervised the exercise of the general law, gave substantial weight to the individual’s right to personal freedom and autonomy in making orders in its lunacy jurisdiction. Moreover, and importantly, the powers of the guardian were always subject to scrutiny by the Masters in the lunacy jurisdiction of Chancery.[8]
[8] Joseph Elmer, The Practice in Lunacy (1872) at 22-25 and 112-119.
The history of the statutory regulation of the care of persons suffering from mental illness in South Australia shows a progressive approach to safeguarding personal autonomy.
From 1847 to 1860 the reception of persons of ‘unsound mind’ into what were described as lunatic asylums was governed by Ordinance No 2 of 1847 (the Ordinance), which provided for their ‘care and maintenance’. The Ordinance prescribed certain preconditions to, and the necessary documentation for, the reception of persons into lunatic asylums established by the then colonial government and established a scheme for ‘Visitors’ to monitor the circumstances of their detention. The Ordinance was primarily directed towards the safe custody of paupers of unsound mind.
The Ordinance was replaced by the Lunatics Act 1864 (SA) (the Lunatics Act), a consolidation statute of the colonial legislature. It provided for the committal, by a Justice, of paupers of unsound mind. It empowered constables, or other peace officers, to take them to a Justice, who was empowered to commit them to an asylum. The asylums were supervised by Visitors and a Board of Inquiry constituted by the colonial surgeon, the resident medical officer and any two or more Visitors.
Both the Ordinance and the Act were premised on the continued existence of a power and jurisdiction of the Supreme Court to appoint committees of the person. In South Australia, the Supreme Court Act 1855-6 (SA) consolidated the pre‑existing ordinances which had established the Supreme Court of South Australia. The Supreme Court was constituted as a ‘court of record’ and given the jurisdictions of the superior common law courts of England. The Court was also constituted as a Court of Equity on which was conferred the equitable jurisdiction and associated powers of ‘the Lord High Chancellor of Great Britain’. The Equity Act 1866-7 (SA) conferred on the Supreme Court the like equitable jurisdiction of the Lord High Chancellor of Great Britain and the High Court of Chancery.
In Re WM,[9] the Supreme Court of New South Wales held that the Lunacy Act 1898 (NSW) had not removed the jurisdiction of the Supreme Court in lunacy, which had been conferred by ordinances and statutes similar to those to which I have referred in force in South Australia.
[9] (1903) 3 SR (NSW) 552.
The Lunatics Act was replaced by the Mental Defectives Act 1913 (SA) (the 1913 Act). The 1913 Act placed the control of mental hospitals with the Mental Defectives Board, and later simply the Inspector-General. It continued to provide for the reception into mental hospitals of persons of unsound mind committed by a Justice but also provided for the ‘boarding out’ of patients.[10] Part 5 of the 1913 Act provided for the administration of the estate of a person committed to a mental hospital by a Justice.
[10] Mental Defectives Act 1913 (SA) Division 5 Part 4.
The Mental Defectives Act 1935 (SA) was also a consolidation statute; it retained the essential structure of the 1913 Act. In 1959, the Act was renamed the Mental Health Act.
The Mental Health Act 1977 (SA) (the 1977 Act) was the first South Australian legislative enactment to provide an administrative scheme for the appointment of a guardian for persons suffering from a mental handicap or mental illness, as an alternative to orders made in the equitable jurisdiction of the Supreme Court. Section 26 of the 1977 Act provided that the Board, if it were satisfied that, by reason of mental illness or mental handicap, a person was incapable of looking after his or her own health and safety or managing his or her affairs, receive that person into guardianship. By s 27 of the 1977 Act, the Board was empowered to place the protected person in the care and custody of a relative or some other person, or by order to require the protected person to be received into a ‘specified hospital, hostel, home or other institution’ and placed in the custody, which term was not defined, of the manager of the institution. The Board was required to treat the welfare of the protected person as the paramount consideration.[11] Part 5 of the 1977 Act provided for the review of orders made by the Guardianship Board by the Mental Health Review Tribunal. An appeal from a decision of the Mental Health Review Tribunal lay to the Supreme Court.[12]
[11] Mental Health Act 1977 (SA) s 27(4)b).
[12] Mental Health Act 1977 (SA) Division III.
It is convenient next to refer to how the scope of the powers conferred on guardians has been legislatively circumscribed in other Australian jurisdictions. Section 14 of the Guardianship Act 1987 (NSW) (the NSW Act) provides that the Guardianship Tribunal may make guardianship orders. A person appointed with plenary guardianship pursuant to s 21 of the NSW Act ‘has custody of the person to the exclusion of any other person’ and ‘has all the functions of a guardian of that person that a guardian has at law or in equity’. Custody conferred on a guardian is exclusive of the custody of any other person to the extent that the order provides.
An order appointing a guardian may empower the guardian ‘to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian’s functions’.[13] The NSW Act, therefore, appears to confer on a guardian all of a guardian’s common law powers without the need for a further order authorising the detention of, or use of force on, the protected person.
[13] Guardianship Act 1987 (NSW) s 21A.
More generally, s 21C of the NSW Act provides that ‘a decision made, an action taken and a consent given’ by a guardian has legal effect as if:
… the decision had been made, the action taken and the consent given by the person under guardianship; ….
On the making of a guardianship order, any order made with respect to the same person by the Supreme Court in the exercise of any of its jurisdictions ceases to have effect.[14]
[14] Guardianship Act 1987 (NSW) s 22.
The Guardianship and Administration Act 1990 (WA) (the WA Act) provides by s 45 that a person who is appointed a guardian has the powers of a person in whose favour a parenting order has been made under the Family Law Act 1977 (WA). The guardian’s powers include the power to decide where the person is to reside, with whom he or she is to reside, with whom he or she is to associate, and what medical treatment he or she will receive.[15] The guardian may apply for directions on the exercise of any power vested in him or her.[16] The decisions of the guardian have the same effect as if they had been made by the protected person.[17] The powers conferred by the WA Act are arguably beset by uncertainty because of the incorporation by reference to parental powers, which may not always be adapted to the care of adult persons with a mental illness.
[15] Guardianship and Administration Act 1990 (WA) s 45(2).
[16] Guardianship and Administration Act 1990 (WA) s 47.
[17] Guardianship and Administration Act 1990 (WA) s 50.
The Guardianship and Administration Act 2000 (Qld) provides that unless the Tribunal otherwise orders, ‘a guardian is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power was exercised’.[18] A personal matter is defined to include where, and with whom, the adult lives, the diet and dress of the person and his or her health care. Personal matters also include legal matters not relating to finance or property. In the matter of JD, Re,[19] the Guardianship and Administration Tribunal of Queensland held, relying on Howe v Howe[20] that a guardian appointed under the Queensland act can make ‘all the decisions in relation to a very broad range of matters and should not be read in a restricted or limited way’.[21] The Tribunal held that:[22]
… Consent to being retained or contained in a particular place is in the Tribunal’s view a legal matter, which a guardian can consent to if the adult is unable to give valid consent. Any restriction or containment will not amount to ‘false imprisonment’ if consent is given to the containment or restriction.
[18] Guardianship and Administration Act 2000 (Qld) s 33.
[19] [2003] QGAAT 14.
[20] (1961) 2 FLR 2 at 4, in which it was held that the term welfare in the context of guardianship and custody of children was a word of the widest possible meaning.
[21] [2003] QGAAT 14 at [27].
[22] JD, Re [2003] QGAAT 14 at [28].
The Guardian and Administration Act 1995 (Tas) (the Tasmanian Act) provides that a guardianship order appointing a full guardian confers on the full guardian powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child, and includes the authority to decide on a place of residence and health care.[23] Section 28 of the Tasmanian Act provides that when a guardianship order is made, the Guardianship Board may specify in the order that the guardian or another person is empowered to take such measures or actions specified in the order to ensure that the represented person complies with any decision of the guardian and expressly grants an immunity to the person acting pursuant to such an authority from an action in false imprisonment or assault.
[23] Guardianship and Administration Act 1995 (Tas) s 25.
The Guardianship and Administration Act 1986 (Vic) is to similar effect.
Returning to the legislative regime in this State, the text and structure of ss 29 to 32 of the Act suggest that they confer the following hierarchy of powers, or, conversely, degrees of restrictions on liberty, with respect to protected persons:
·simple guardianship with powers to authorise some persons but not others to provide consensual health and day to day care, and to exclude persons from a place in which a protected person resides by consent;
·a placement order pursuant to s 32(1)(a) of the Act which enlivens the police powers in s 32(4)(a);
·a medical treatment order;
·a detention order.
As I earlier identified, the central question on this appeal is whether the Act, in conferring the powers set out in s 32, impliedly abrogates the general law powers of a guardian to detain, and use other force, when assuming responsibility for the affairs of a protected person.
Textually, the very conferral of the power on the Tribunal to order detention suggests that the power to do so unilaterally has been withdrawn from the guardian. It is improbable that s 32 of the Act was intended only to provide a mechanism for the avoidance of doubt over a guardian’s power.
The legislative history of the care of persons with mental illness supports an affirmative answer to that question. A construction of s 32 of the Act, which requires that an order be first obtained from the Tribunal which has supervisory jurisdiction over the powers of guardians, and that the guardian justify any constraint of the protected person’s liberty, is consistent with Article 9 of the International Covenant on Civil and Political Rights.[24] That article in turn reflects the common law principle of legality.
[24] UN General Assembly, International Covenant on Civil and Political Rights, 19 December 1966, United Nations Treaty Series, vol. 999.
When it comes to the detention of a vulnerable person it is undoubtedly preferable, and consistent with the fundamental value the common law accords personal liberty, for the guardian to be required to make an application to the independent Tribunal pursuant to s 32, rather than to hope that a protected person, or a benevolent intervener, will be in a position to bring an application pursuant to s 30 for a variation or revocation of an unjustified detention order. The Solicitor-General pointed to a contra-indication to the construction preferred by the Judge. It was emphasised that the making of a detention order by the Tribunal resulted in the conferral of powers on the guardian or a member of the police force to enter premises and to use reasonable force necessary to return the protected person to the specified residence or place of detention ordered pursuant to s 32(4)(a). It was also said to authorise the person in charge of premises in which a protected person is being detained to take such action as is reasonably necessary for the purpose of preventing the person from leaving. The Solicitor General’s contention should be rejected.
The authorisation of force follows only after a decision of the Tribunal to make a placement or detention order. Under the general law, the guardian could authorise any person to use that force, for example, by engaging private security agents. I acknowledge that private agents could not trespass on a stranger’s property to take a protected person into custody. But, in that respect, s 32(4) of the Act is protective in nature, ensuring the welfare of the protected person after a public and independent determination of what is necessary for that purpose. Again, I would emphasise that s 32(4) of the Act authorises only police officers to enter private property for that purpose. In short, s 32 ensures that the orders which justify restraint on liberty, and authorise others to take action which would otherwise be unlawful, are a matter of public record rather than private memoranda of the kind contemplated in the above-cited passage in McLaughlin.
Moreover, the orders are generally executed by police officers. The only private person authorised to use force is the person in charge of premises upon which the Tribunal has authorised the protected person’s detention.
For the above reasons, I would hold that any restraint on liberty which can be imposed by an order of the Tribunal pursuant to s 32 of the Act cannot be lawfully authorised by a guardian acting under a limited or full guardianship order made pursuant to s 29. The words ‘subject to this Act’ in s 31 must be given full effect.
Was BC unlawfully detained?
In his affidavit sworn on 12 December 2018, DC, BC’s son, described BC’s accommodation at the Barossa Village. The door at the reception of the Barossa Village is sometimes locked and DC uses a code on a keypad to get through the door. At the entry to the locked ward there is another locked door with keypad access. DC deposes that neither BC nor he have the access code. A sign on the door indicates that access can only be gained with the assistance of a staff member using a swipe card.
By email dated 2 October 2018 the Public Advocate, through one of its officers, Ms R, advised DC that the following guidelines would apply to govern his access to BC:
·outings 2-3 three times a week max;
·clear contact with staff when leaving and returning;
·taking frame and encouraging [BC] to use so he reduces falls when he returns;
·consultation about meds and food intake;
·2 hours max and return before 4 pm.
The email further advised DC that the guidelines were subject to review and ultimately could be overridden by the manager at the facility if BC’s welfare and health were at stake.
DC deposed that, in accordance with the guidelines, the managers of the Barossa Village had adopted the practice of telephoning Ms R to seek her permission before allowing BC to leave the facility, and that the officer had denied BC permission to leave with DC on at least one such occasion.
On 8 November 2018, the Public Advocate informed DC that guidelines had been issued to the managers of the Barossa Village governing his access to BC. The guidelines were:
·no taking [BC] out of the facility;
·only seeing [BC] in the presence of staff, i.e. in the main area;
·moderation of language – to be less inflammatory and conflictual.
The legal effect of the guidelines was to impose a restriction on BC’s freedom of movement because it meant that he would not be allowed to leave the locked ward in his son’s company. The guidelines could not, of course, impose any legal obligation on DC because he was not a restricted person. However, in practice they restricted his access to the premises in which his father was detained.
Matthew Kowald is the General Manager of the Barossa Village Aged Care Facility. He gave the following evidence about the care of persons in the locked ward, to which he refers as the Memory Support Unit:
8. The Memory Support Unit is a 20 bed unit which is part of the 100 bed facility. …
9.The Memory Support Unit has a key pad lock which is secured automatically when the door shuts. The lock can be unsecured either by inputting the code or using a swipe card. The code is not displayed in the unit. Frequent visitors may be issued with a swipe card or are told the code by staff. The residents in the Memory Support Unit can leave the Memory Support Unit when accompanied by a staff member or a volunteer. Residents can also can be brought out by family members and friends. Residents are signed in and out to ensure staff are aware of where they are. The residents are accompanied in order to ensure their safety. Although some residents may at times be capable of going through the door unaccompanied, I do not think that any of the current residents could safely do so. The risks for [BC] if he were to go out of the Memory Support Unit include the risk of falling, which is primarily due to his frailty and eyesight more than anything else. He needs to walk with a four-wheeled walker which he mostly uses. The facility overall is large and can be disorienting. [BC] has periods of confusion, particularly in the later afternoon, and I consider that there is a risk he could get disorientated in the general area.
10.The front doors of the general area of the nursing home are unlocked at 6:30am and locked after 5:00pm. All others doors (eg those that lead to carparks and roads) are operated by keylock.
11. [BC] is allowed to come out of the unit when he would like to. As his vision is so poor it is difficult for him to safely do this without someone to help guide him. On 23 November 2018 I had a discussion with [Ms R] of the Office of the Public Advocate as Barossa Village had been served with a copy of the Supreme Court proceedings and I became aware that there were allegations that [BC] was being unlawfully restrained. For that reason I considered it appropriate that I should I confirm the position that [BC] is allowed to go out of the Memory Support Unit safely. I documented in [BC’s] progress notes that staff should observe and document where [BC] would like to go when he requests to go outside of the Memory Support Unit. Exhibit ‘MSK3’ contains a true copy of my note of 23 November 2018. I also orally confirmed to the nursing staff at handover that day that they should let [BC] out of the Memory Support Unit whenever he requests to do, but that they should observe him.
12. I had a conversation with [BC] about the geriatrician's appointment he needed to attend on the 29th of November 2018. I explained to [BC] the purpose of the assessment and answered his questions about it. I recall that I said to [BC] words to the effect of: ‘[BC], would it make a difference if you were in a room that was not the Memory Support Unit?’ He said words to the effect of: ‘No, I don't think so. This is a nice enough place. I love all the girls but I'm a prisoner.’ I then said, ‘You're allowed to go out whenever you like’ and he said ‘No, I'm a prisoner because of my vision’. We talked about the concert he went to the day before (which had occurred in the club room in the general area of the facility) and he said he would like to go to more of those. Exhibit ‘MSK3’ contains a true copy of my notes of that discussion recorded in [BC's] progress notes.
13. [BC] goes out of the Memory Support Unit when family take him on outings. Often he does not want to leave his room and says he is waiting for a telephone call. To my knowledge he has not specifically asked to go into other areas of the facility. I am also not aware of specific requests to leave the facility, although I am aware of the progress note entered by Ms Jessica Thompson on 25 November 2018 (in exhibit MSK3) of statements [BC] made during a telephone conversation that Ms Thompson overheard while she was attending to [BC] because of his state of high agitation.
14. [BC] has adjusted to care in the Memory Support Unit reasonably well. He is happy with the staff in the unit and familiar with his room. We have seen little evidence of the wandering that was described at Gawler Grande Views. The level of behaviour disturbances seems to be reducing, although he still has occasions of agitation and instances of inappropriate sexual behaviour. There have been some outbursts at staff and his wife and I have the sense that these are often exacerbated by visits and telephone conversations with [DC].
15. It would be possible to consider moving [BC] out of the Memory Support Unit and into a room in the wider facility. From a risk perspective, the wandering behaviours have reduced. There is a currently one room that could be made available next to the dining room which is advantageous from the perspective of his impaired vision. There are also more men there that he could socialise with in that area. On the other hand, there are still some behaviours of concern and his confusion is more pronounced in the evening. If a move from the Memory Support Unit to the general area of the facility was to be pursued, it would be a matter of discussing the matter with [BC], his family and the Public Advocate to determine the benefit.
Not surprisingly, the Judge found that BC’s liberty was unlawfully curtailed:[25]
[16]The relevant evidence satisfies me that the conditions under which the plaintiff resides at the Facility involve a restriction on his freedom of movement in relation to leaving the unit and the Facility unaccompanied. There is a locked door to the unit which can only be opened by entering a code on a keypad or swiping a card over an electronic device. These measures are intended to prevent the residents in the unit from leaving without permission and supervision.
[17]I accept that the Public Advocate directed the plaintiff reside at the Facility, knowing that these are the conditions of his residence at the Facility. I accept that the Public Advocate considers that these conditions are necessary for the plaintiff’s care and protection.
[25] BC v The Public Advocate & Ors [2018] SASC 193 at [16]-[17].
Before the Judge, and on appeal, much emphasis was placed on the degree of restraint that would justify the writ of habeas corpus. In Antunovic v Dawson, Bell J said: [26]
… [c]lose custody, imprisonment, detention or something analogous is not a necessary element of the right to habeas corpus, although restraints of that kind are clearly covered. The purpose of the writ is to give a remedy against unlawful restraints on personal liberty, which is not to be narrowly defined. The restraint may be imposed directly or indirectly. It may be partial or total. The question is whether the person imposing the restraint has the lawful custody, power or control of the person being restrained. ... For the purposes of habeas corpus, it is a restraint on personal liberty to imprison or detain somebody and also to impose restrictions on their liberty or freedom of movement which are not shared by the public generally.
(citations omitted)
[26] (2010) 30 VR 355 at 380.
The emphasis on the reach of the writ of habeas corpus is to some degree misplaced. Its purpose is to bring a person who may have been the subject of unlawful restraint before the Court so that any question about the extent and degree of their restraint and its legality can be resolved, and so that they may be seen to freely exercise the liberty declared by the Court. The degree of restraint sufficient to justify the issue of the writ may, therefore, be less than the restraint which constitutes a false imprisonment. In a case in which a statutory office holder such as the Public Advocate is the defendant, it can be expected that a declaration of the Court will be sufficient to ensure that a person unlawfully restrained regains his or her liberty and freedom of movement.
The issue of substance in this case is whether the conditional liberty occasionally granted to BC precludes a conclusion that he was unlawfully detained during such periods that permission to leave the locked ward was not given. In Meering v Grahame-White Aviation Co Ltd,[27] the Court of Appeal considered whether the plaintiff’s submission to apprehension by private agents and metropolitan police might amount to unlawful imprisonment even though the plaintiff was unaware that he was being detained and would have been prevented from leaving had he attempted to do so. The Court held that there could be detention in fact, even though the person detained was not aware of his or her detention, but that lack of awareness would affect the question of damages. Duke LJ said:[28]
It is a matter of very great nicety to determine whether upon those facts there is sufficient to warrant a verdict that the person complaining was imprisoned. What constitutes imprisonment has been long ago defined. It is to be found in a work of very good authority in the application of the common law – namely “Terms de la Ley’ – in these words: “‘Imprisonment’ is no other thing, but the restraint of a man’s liberty, whether it bee in the open field, or in the stocks, or in the cage in the streets or’ – referring to now obsolete methods of imprisonment – “or in a man’s owne house, as well as in the common gaole; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to goe at all times to all places whither he will without baile or main, prise or otherwise’.
(emphasis added)
[27] (1919) 122 LT 44.
[28] Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 51.
In the same case, Atkin LJ said:[29]
I am disposed to think that the definition of ‘imprisonment’ read by my brother Duke from “Terms de la Ley’ is an adequate and sufficient statement of what is meant by that expression. I think that one might add to that a reference to the case of Bird v Jones (7 QB 742), where Coleridge J indicated that to the definition of imprisonment and restraint of liberty there has to be added restraint within a particular space. … It appears to me that a person could be imprisoned without his knowing it. …
[29] Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53.
In Bird v Jones,[30] the Court of Appeal (Patteson, Coleridge and Williams JJ, Lord Denman CJ in dissent) held that to obstruct a highway but allow a passer-by turn back was not false imprisonment.
[30] (1845) 7 QB 742.
Williams J said:[31]
“Every confinement of the person’ (according to Blackstone (3 Bl. C. 127)), “is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public street,’ which, perhaps may seem to imply the application of force more than is really necessary to make an imprisonment. Lord Coke, in his Second Institute (2 Inst. 589), speaks of “a prison in law’ and “a prison in deed:’ so that there may be a constructive, as well as an actual, imprisonment: and, therefore, it may be admitted that personal violence need not be used in order to amount to it. “If the bailiff’ (as the case is put in Bull. N. P. 62) “who has a process against one, says to him,’ “‘You … are my prisoner, I have a writ against you,’ upon which he submits, turns back or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process.’ So, if a person should direct a constable to take another in custody, and that person should be told by the constable to go with him, and the orders are obeyed, and they walk together in the direction pointed out by the constable, that is, constructively, an imprisonment, though no actual violence be used. In such cases, however, though little may be said, much is meant and perfectly understood.
(emphasis added)
[31] Bird v Jones (1845) 7 QB 742 at 747-748.
In Watson v Marshall, in a trial of an action in the High Court, Walsh J held that the way in which a detective interviewed and conveyed the plaintiff to a hospital amounted to unlawful imprisonment, even though physical force was not used: [32]
During or at the end of the interview with the plaintiff, Dr. Birrell filled out and signed “a statement of the prescribed particulars’ and also a “recommendation’ and the defendant filled out and signed a “request’, for the purposes of s. 42 (1). The plaintiff said in evidence that the defendant then arrested him, using the word ‘arrest’. The defendant denies that he used that word or that he indicated to the plaintiff that he was under arrest. His version is that he told the plaintiff that Birrell had instructed him to take the plaintiff to the Royal Park Hospital for psychiatric examination and treatment. He told the plaintiff’s solicitor, with whom he had a telephone conversation, that the plaintiff was to be taken to the Royal Park in accordance with the Mental Health Act and on the doctor’s instructions. It is plain and indeed it is not in dispute, that it was made clear to the plaintiff that he had to go to the hospital. The plaintiff protested but went to a police car which was nearby and went in it with the defendant to the hospital. There the defendant handed over the documents to which s. 42 (1) refers and the plaintiff, after examination by a doctor, was admitted. No physical force was used at any time by the defendant. But I find that in the circumstances the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go to the hospital. Therefore a restraint was imposed upon the plaintiff which amounted to an “imprisonment’ of him by the defendant: see Fleming, The Law of Torts, 4th ed. (1971), pp. 28-29; Winfield on Tort, 7th ed. (1963), p. 155 ; and Symes v. Mahon. Therefore the defendant, to escape liability, must show that there was, for what he did, a legal justification either at common law or by statute.
(citation omitted)
[32] Watson v Marshall (1971) 124 CLR 621 at 626.
The Judge was plainly correct to find that BC was detained. Whilst in the locked ward there can be no question that he was so detained because he neither knew the code nor had a card. On those occasions when he was allowed to leave whilst accompanied by another person, it is clear that if the Public Advocate’s directions were followed, it would have been clearly conveyed to BC that he was required to return. BC remained in detention even though no physical force might have been required because of his submission. Even if BC was not detained in that way on the occasions he was allowed to leave the locked ward, and it was the fact that he was occasionally given his liberty, those occasions could not change his status as a detained person whilst he was in the locked ward. It follows that BC was unlawfully detained.
Finally, I acknowledge the concern of Hinton and Kelly JJ about the consequences of the construction I have adopted for general guardians who must act in an emergency to protect the person for whom they care. Of course, that is not this case and my reasons do not deal with that difficulty. That must await another day. On that day perhaps the first question will be whether the defence of lawful justification might be adapted to render action to protect the person in their care from imminent harm, and which otherwise would have constituted the crimes or torts of assault, battery or unlawful imprisonment, lawful. That approach would immunise the reasonable prophylactic conduct of not only general guardians but also those carers who have yet to be appointed guardians and the many other persons ‒ relatives, friends, doctors, allied health professionals, nursing home workers, and volunteers ‒ who may have to act urgently. If there is an Alsatia, between what can be done under existing laws to deal with emergency situations and the time it may take to access the Tribunal under any expedited process it may provide, or if uncertainty puts the safety of persons at risk, then these are matters which merit the attention of the Parliament.
Appointment of litigation guardian
BC’s wife, W, seeks permission to appeal against the decision of Stanley J made on 10 December 2018 dismissing her application that a litigation guardian be appointed. After dismissing the application Stanley J proceeded to hear the judicial review proceeding on 13 December 2018 and delivered judgment on 18 December 2018. The application for permission to appeal against the decision not to appoint a litigation guardian was argued contemporaneously with the substantive appeal. I would refuse permission to appeal for three reasons. First the medical report relied on in support of the application did not specifically address BC’s understanding of the substantive proceedings. The appeal would have limited prospects, therefore, because of the deficient evidential basis. Secondly no question of principle is involved. Thirdly, there is no present utility in the application.
Conclusion
For the above reasons I would dismiss the appeal.
KELLY J: I agree that the appeal should be dismissed and that permission to appeal on W’s application should be refused. I agree generally with the reasons of the Chief Justice subject to the reservations expressed by Hinton J with which I also agree.
HINTON J: I agree with Kourakis CJ that the appeal should be dismissed. I agree that any restraint on liberty that can be imposed by an order of the Tribunal pursuant to s 32 of the Guardianship and Administration Act 1993 (SA) cannot be lawfully authorised by a guardian acting under a limited or full guardianship made order pursuant to s 29. I would, however, reserve for another day the question of whether there are circumstances, for convenience described as emergency situations, in which the guardian may restrain a person subject to a guardianship order that does not expressly include power to detain under s 32, in order to ensure that person’s safety and wellbeing until such time as the appropriate order may be obtained.
With respect to the exercise in statutory construction undertaken by the Chief Justice, I add; difficulty in discerning the content of the common law powers of a guardian is largely the result of the powers possessed by a committee of the person and a committee of the estate having been the subject of legislation in relation to the former for near on two hundred years and the latter over two hundred years in England and, in this country, since the early days of colonisation.[33] Accordingly, if there is a residual field of common law power to detain a person of unsound mind in emergency situations until such time as confirmation by order of this Court or the Tribunal can be obtained, it may be appropriate for the legislature to make as much plain.
[33] See, for example, Phillips on Lunacy (1858, London); Shelford on Lunatics (1833, London); J H McClemens and J M Bennett, ‘Historical Notes on the Law of Mental Illness in New South Wales’ (1962) 4 Sydney Law Review 49.
Lastly, the normative content of the common law rights to which the principle of legality applies is a fertile area for debate.[34] I would wish to hear argument before drawing any conclusion as to the extent to which those rights equate to the rights subject of the International Covenant on Civil and Political Rights[35] and the construction of the Covenant. That said, in this case, as Griffiths CJ said in McLaughlin v Fosbery, “in the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place”.[36]
[34] Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372; Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449.
[35] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[36] (1904) 1 CLR 546 at 559.
I agree with Kourakis CJ that W’s application for permission to appeal should be refused.
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