Attorney-General for the State of Queensland v NPG [2024] QSC 22

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v NPG [2024] QSC 22 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v NPG (respondent) FILE NO/S: BS No 6760 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 February 2024 DELIVERED AT: Brisbane HEARING DATE: 19 February 2024 JUDGE: Williams J ORDERS: 1. The question of the respondent’s capacity be referred to QCAT for determination. 2. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material: (a) A copy of the transcript from the hearing on 19 February 2024. (b) A copy of the reasons of decision to be delivered. (c) A copy of the following documents from Supreme Court file BS 6760 of 2019: (i) Affidavit of D Anderson filed 23 March 2022 (CFI 55). (ii) Affidavit of L Hatzipetrou filed 16 May 2023 (CFI 67). (iii) Affidavit of Z Rutherford filed 31 May 2023 (CFI 69). (iv) Affidavit of K Brown filed 31 May 2023 (CFI 70). (v) Affidavit of R Moyle filed 29 June 2023 (CFI 74). -- 1 of 19 -- 2 (vi) Supplementary affidavit of Z Rutherford filed 29 June 2023 (CFI 75). (vii) Supplementary affidavit of L Hatzipetrou filed 29 June 2023 (CFI 76). (viii) Affidavit of N Palmer filed 5 July 2023 (CFI 77). (ix) Affidavit of Z Rutherford filed 31 January 2024 (CFI 90). 3. The Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the referral by 4pm on 15 April 2024 CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where, on 18 December 2019, a continuing detention order was made pursuant to Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the current proceedings are the third annual review of the continuing detention order – where the respondent’s continuing detention order was affirmed at the first and second review – where an issue has arisen as to whether the respondent is a person with impaired capacity – whether the respondent has capacity to make the decisions required to conduct the review of his continuing detention under the DPSO Act – whether the question of the respondent’s capacity to respond to the DPSO Act proceedings should be referred to the Queensland Civil and Administrative Tribunal for determination Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27(2) Disability Services Act 2006 (Qld) Guardianship and Administration Act 2000 (Qld), s 12 Uniform Civil Procedure Rules 1999 (Qld), r 72 Attorney-General for the State of Queensland v SLS (2021) 8 QR 128; [2021] QSC 111 Attorney-General for the State of Queensland v FPN [2021] QSC 110 COUNSEL: J Tate for the applicant J Briggs for the respondent as amicus curiae SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent as amicus curiae -- 2 of 19 -- [1] On 16 May 2023 the applicant filed an application initiating an annual review of the respondent’s continuing detention order pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act), which is the third annual review in respect of the respondent (third annual review).1 [2] Prior to the hearing of the third annual review, an issue has arisen as to whether the respondent is a person with “impaired capacity” and is not able “to make decisions required for conducting proceedings”. [3] The applicant obtained supplementary reports focussed on the issue of the respondent’s capacity from: (a) Dr Karen Brown;2 (b) Dr Robert Moyle;3 and (c) Dr Luke Hatzipetrou, (treating forensic psychologist).4 [4] Based on the clinical evidence, the applicant submits that the respondent is a person with impaired capacity and the question of whether a guardian should be appointed under the Guardianship and Administration Act 2000 (Qld) (GA Act) should be referred to the Queensland Civil and Administrative Tribunal (QCAT). [5] It is also submitted that in considering the issue of the respondent’s capacity, QCAT should consider the respondent’s capacity in respect of at least legal, personal, accommodation matters and provision of services. [6] Counsel and Legal Aid represent the respondent in respect of the third annual review and also in respect of the issue of capacity. [7] The issue of whether the respondent is a person with impaired capacity was listed for consideration by the Court on 19 February 2024. Given the clinical evidence in respect of the respondent’s capacity, at the hearing the appearance on behalf of the respondent was confirmed as being as amicus curiae. [8] Dr Brown and Dr Moyle gave further oral evidence and were cross examined at the hearing. [9] Following the hearing on 19 February 2024, the following orders were made: “THE COURT ORDERS THAT: 1. The question of the respondent’s capacity be referred to QCAT for determination. FURTHER, THE COURT DIRECTS THAT: 1 A continuing detention order was made by Ryan J on 18 December 2019: [2019] QSC 312. At the first annual review, Jackson J made a continuing detention order on 31 March 2021: [2021] QSC 66. At the second annual review, Wilson J made a continuing detention order on 22 May 2022: Transcript of judgment (QSC, Wilson J, 27 May 2022). 2 Risk Assessment Report for annual review dated 17 May 2023. Supplementary Report dated 12 September 2023. 3 Risk Assessment Report for annual review dated 14 June 2023. Supplementary Report dated 29 August 2023. 4 Supplementary Report dated 19 February 2024. -- 3 of 19 -- 4 2. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material: a) A copy of the transcript from the hearing on 19 February 2024. b) A copy of the reasons of decision to be delivered. c) A copy of the following documents from Supreme Court file BS 6760 of 2019: (i) Affidavit of D Anderson filed 23 March 2022 (CFI 55). (ii) Affidavit of L Hatzipetrou filed 16 May 2023 (CFI 67). (iii) Affidavit of Z Rutherford filed 31 May 2023 (CFI 69). (iv) Affidavit of K Brown filed 31 May 2023 (CFI 70). (v) Affidavit of R Moyle filed 29 June 2023 (CFI 74). (vi) Supplementary affidavit of Z Rutherford filed 29 June 2023 (CFI 75). (vii) Supplementary affidavit of L Hatzipetrou filed 29 June 2023 (CFI 76). (viii) Affidavit of N Palmer filed 5 July 2023 (CFI 77). (ix) Affidavit of Z Rutherford filed 31 January 2024 (CFI 90). 3. The Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the referral by 4pm on 15 April 2024.” [10] These are the reasons for making the orders on 19 February 2024. The approach to the issue of whether the respondent is a person with impaired capacity [11] The issue of capacity of a respondent under the DPSO Act has previously been considered by me in two decisions: (a) Attorney-General for the State of Queensland v SLS (2021) 8 QR 128;5 and (b) Attorney-General for the State of Queensland v FPN [2021] QSC 110. [12] These decisions concerned questions of impaired capacity by reason of mental illness and a combination of mental illness and intellectual disability respectively. [13] The issue in the current matter involves consideration of impaired capacity by reason of intellectual disability. There is no reason of principle to distinguish the reasoning and approach outlined in the above decisions as a consequence of the impaired capacity arising by reason, solely or substantially, of an intellectual disability. [14] Consistent with the reasoning in Attorney-General for the State of Queensland v SLS and Attorney-General for the State of Queensland v FPN, the issue of the respondent’s capacity is to be approached as follows: (a) The question to be considered is whether the respondent has capacity to make the decisions required to conduct the review of his continuing detention under the DPSO Act and, if not, what is the appropriate course. 5 [2021] QSC 111. -- 4 of 19 -- 5 (b) The starting point is for the Court to reach a view on the available evidence as to whether the respondent is a person with impaired capacity within rule 72 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). (c) The assessment as to whether the respondent is a person with impaired capacity: (i) is to be done keeping in mind the gravity of a proceeding under the DPSO Act and the significant potential impacts on the liberty of the individual concerned. (ii) requires consideration of whether the respondent is not capable of making the decisions required of a person responding to a DPSO Act proceeding. (d) Responding to a DPSO Act proceeding requires an understanding of the nature of the DPSO Act proceeding and a consideration of issues such as whether the respondent: (i) understands the nature of the application under the DPSO Act and that if the respondent is found to be a serious danger to the community the respondent may be subject to an order for continuing detention or release subject to a supervision order. (ii) understands the nature of the decisions the respondent has to make. (iii) understands the effect of the decisions the respondent has to make. (iv) is capable of freely and voluntarily, and rationally, making decisions about the matter. (v) is capable of communicating decisions about the matter. (e) Further, the decisions required of a person responding to a DPSO Act proceeding are different from those of “ordinary” civil proceedings, particularly given that the liberty of the respondent is at stake. The decisions required include, but are not limited to, informed decisions freely, voluntarily, and rationally made concerning: (i) whether to engage a lawyer; (ii) whether to present evidence; (iii) the type of evidence to be presented; (iv) whether to cross-examine witnesses; (v) what questions to ask in cross-examination; (vi) engagement with the real questions, including whether the person poses a serious danger to the community, and if so, how that risk should be met; (vii) risk mitigation strategies, including: (A) identification of, and procurement, if needed, of accommodation and rehabilitation and treatment programs; -- 5 of 19 -- 6 (B) identification of, and procurement, if needed, of support services (eg through NDIS); (viii) compliance with any requirement of a supervision order; (ix) what submissions to make; (x) prospects for a potential appeal, and whether to initiate or defend an appeal; and (xi) if subject to a continuing detention order, whether an application to the Supreme Court for leave to initiate a review should be made. [15] If, on a review of the evidence, the respondent has an impaired capacity to trigger rule 72 UCPR, it is then necessary to consider: (a) Is the appointment of a litigation guardian under the UCPR appropriate? (b) If not, should the Court exercise its power to refer the question of the respondent’s capacity to QCAT to be determined in accordance with the GA Act? [16] It is then necessary to apply these principles to the evidence relevant to the respondent in the current matter. Is the respondent a person with impaired capacity? [17] For the purposes of the third annual review, Dr Moyle prepared a report dated 14 June 2023 and Dr Brown prepared a report dated 17 May 2022. Both Dr Moyle and Dr Brown are of the opinion that significant restrictions would be required to ensure the adequate protection of the community should the respondent be released to supervision on his current NDIS package. [18] Further, the respondent’s unmodified risk was identified as being high, together with his personality structure, psychopathy, and intellectual disabilities. [19] In respect of the respondent’s longitudinal diagnoses, there has been no material change since the original Division 3 hearing in December 2019. In summary: (a) Dr Harden: (i) Mixed Personality Disorder (severe with marked antisocial and dependant features); (ii) Psychopathy; (iii) Mild Intellectual Impairment; and (iv) Epilepsy. (b) Dr Beech: (i) Psychopathy; (ii) Antisocial Personality Disorder; (iii) Klinefelder’s Syndrome; and -- 6 of 19 -- 7 (iv) Borderline Intellectual Functioning following from a Frontal Lobe Brain Injury. (c) Dr Moyle: (i) Psychopathy; (ii) Severe Personality Disorder (Cluster B, with prominent narcissistic, antisocial and borderline features); (iii) Klinefelder’s Syndrome; (iv) Borderline Intellectual Functioning; and (v) Epilepsy. [20] The respondent has been deemed eligible for funding under the NDIS and has been provided a package with specified supports in the home and living supports decision outcome dated 3 January 2023. Relevantly, the package includes: (a) Specialist Disability Accommodation – not eligible. (b) Support Independent Living (SIL) – suitable. (c) 1:3 shared SIL supports. (d) Two hours daily 1:1 for medication management, meal preparation and self- care. (e) Standard Intensity Pricing Levels. (f) 1:3 Inactive Overnight. (g) Social Community and Civic Participation. (h) Five hours of daily 1:1 supports. [21] Dr Moyle in his report for the purposes of the third annual review expressed a view in relation to the adequacy of the respondent’s current NDIS package: “[69] This has been provided based on a 3 January 2023 assessment. Their assessment says that he doesn’t meet the need for Housing Supports but he does for Supervised Independent Living on a largely 1:3, with two hours individual supervision of medication, self-care and meal preparation and intensive overnight shifts. We need to be assured that means locked doors and windows, and on-site staff, at least when a male, aware of his proclivity for manipulation and convincing others that he is safe to be permitted freedoms and time alone with women. Positives allow five hours a day individual supervised assistance to engage with the community. I am concerned that they say he doesn’t meet needs for challenging behaviours.”6 6 Dr Moyle’s Report dated 14 June 2023 at [14]. -- 7 of 19 -- 8 [22] The evidence for the third annual review gave rise to the initial concern as to whether the respondent’s degree of intellectual impairment and functional incapacity impaired his capacity to make decisions required of a litigant. [23] In particular: (a) Dr Moyle at [191]: “He should have no capacity to access and entice women into thrusting him and go with him where he can isolate and abuse them sexually. All access to women should be only under the approval of supervising correctional officers. To achieve this initially he will need secure placement with locked windows and doors and staff supervising that facility 24 hours a day, who are able to call on HROMU if they have concerns. EM tinkering should result in rapid deployment of staff to ensure he is not planning to secretly escape and be able to meet a woman alone.”7 (b) Dr Brown: “As per the previous annual hearing it is proposed that this is achieved using a combination of supervision order conditions and NDIS supports in a supported living arrangement. I am in broad agreement that this proposed management plan will reduce the risk of sexual reoffending to moderate, so long as [the respondent] does not have access to females. Co-residents must be male. It would be preferable for [the respondent] to only have male support workers / case managers. If this cannot be achieved then the option of female staff working in pairs (or with a male) as per an agreed safety plan (made by the agency involved in collaboration with QCS) would be the next best option. Female staff should not work in the property overnight. The property should not be near to child / adolescent (or other vulnerable persons) facilities.”8 (c) Dr Luke Hatzipetrou (Treating Forensic Psychologist): “If [the respondent] were to be released from custody, he would require an intensive support model of care, with 24 hour supervision, active night shift, and access to experienced disability support workers. Moreover, [the respondent] would be better managed in an individualised accommodation arrangement rather than a populated environment. To this end, [the respondent] would not be suited for the houses at the Precinct or likewise, a hostel. If an individualised arrangement could not be funded, [the respondent] is likely to adapt to shared accommodation with one other male. [The respondent] presents with risk factors that can be managed with supervision, conditions of the DPSOA and implementation of a positive behaviour support plan with a consideration of Restrictive practices of securing doors and windows overnight.”9 7 Dr Moyle’s Report dated 14 June 2023, 35 [191]. 8 Dr Brown’s Report dated 17 May 2023, 33. 9 Dr Hatzipetrou’s Report dated 24 May 2023, 1-2. -- 8 of 19 -- 9 [24] Dr Moyle and Dr Brown provided supplementary reports focussing on the issue of the respondent’s capacity. [25] Dr Moyle in his supplementary report dated 29 August 2023 provided an opinion including as follows: “[132] Medically he has epilepsy, type II diabetes, that are two serious conditions needing treatment. He does not necessarily see the need to adhere to treatment advise even though to become unwell from these conditions is likely to confuse him and therefore further impair his conscious reasoning capacity. He may choose if given the option of doing so to not adhere to treatment. Resulting confusion, cause acute brain problems, as well as life threatening illnesses, which would increase risk to the general population if his health needs are not monitored. While he is slowly gaining some benefit from seeing Dr Hatzipetrou, progress has been very slow, which is common in people with antisocial personality disorders and high psychopathy ratings as well as cognitive impairments. Risk assessments has invariably placed his risk at a high level. He has limited protective factors. He currently has no support network that is prosocial, outside of the possibility of NDIS funded support in engaging him in the community, meeting his needs for support and care. However, this does not address the sexual risk management needs, other than the care needs. [134] With me he presents as impulsively unable to discuss and make decisions required by a litigant for conducting proceedings and matters that might arise in such proceedings. He uses the word "guardianship" without an understanding of what this means, until it is explained to him repeatedly forcing others to be there to explain the normal reasoning for moral and safe self-care decisions. He continues to conflate his needs and see that his needs can be met by a single female, who will provide guardianship, companionship, oversight, supporting, cooking and care needs, rather than seeing these as provided by different people. He does not show any great interest in having male supporters, he would prefer a female to address all these needs. He denies a sexual urge, but at the same time plans to present a rose as he did in courting his wife, possibly the first one. He addresses Valentine's poems to Dr Brown and shows me these poems as well. He says there is an innocent explanation for this. He presents as fixated on having women care for him irrespective of the risk this will stimulate and urge for a sexual relationship, that he is fit enough to still impose if his wishes are not met as in the past when women are alone in his presence. [135] He does not seem to have a grasp of the potential the interplay of issues in a Dangerous Prisoners (Sexual Offenders) Act hearing. He is unlikely to address issues that could support whether he remains in custody indefinitely or alternatively ways that risk could be managed -- 9 of 19 -- 10 if released on a Supervision Order. He tells me he would not comply with all reasonable directions, that would include a direction to inform potential victims in his neighbourhood of his proclivities, but does say that he will comply with curfew, wearing electronic monitoring and volunteers his knowledge of such likely requirements as possibly discussed with his treating psychologist. That seems to counteract statements that he forgets or does not remember the issues. He reports being unaware of the possible right to appeal. He says ultimately that he may attend on rehabilitation, but a woman that he imagines meeting all of his needs would provide transport. While he accepts the need for compliance at one level, he leaves open the possibility that he will refuse to comply with orders that he disagrees with, then says he would. Any assurance of adherence is unreliable. [136] In the current annual review of proceedings can he make informed and rational decisions with respect to: (1) whether to engage a lawyer; This is limited. He is ill informed and subject to irritable rejection of the lawyers on offer. At times he says he will engage a lawyer, at times he won't, but he cannot rationally discuss these issues. (2) whether to present evidence; He is unable to inform me of any evidence he might want to present other than that he wishes freedom, that is implied more than stated. He says that he knows that he will wear an electronic monitoring device, that can inform Corrections, and that he can possibly have the assistance offered by possibly having a legislated guardian, his appreciation of how that is to be applied is lacking, and poorly recalled as is the option that he may present evidence. (3) the type of evidence to be presented; No. (4) whether to cross-examine witnesses; No. (5) what questions to ask in cross-examination; No. (6) what submissions to make; Minimally he says he will agree to wear electronic monitoring to work in Lifeline or the Salvation Army and possibly attend rehabilitation and comply with directions if he agrees, that agreement varies and is subject to impulsive, ill-considered and irrational change. At times he can show some rational appreciation that is short lived, and inconsistent. (7) whether to initiate or defend an appeal. -- 10 of 19 -- 11 No. (1) Is [the respondent] capable of making a rational decision about whether he should submit to medical treatment as directed? His life history is of inconsistent compliance with medical advice and this is consistent with the information he gives me, that he will inconsistently comply with medical advice and probably won't take medicines if he does not think he needs to and cannot volunteer the names of medicines, nor consistently account for his illnesses needing medical attention nor significantly understand or discuss the implications of such decisions. In my opinion he is not capable of making a rational decision about whether he should comply to medical treatment. (2) Is [the respondent] capable of understanding the nature and effect of a Restrictive Practice Order, both generally and as it may apply to him, if he is released on a Community Supervision Order? The best I could achieve was his hesitancy about restrictions such as locked doors, i.e. that in the residential section of the prison the doors are not locked and the supervision he wishes is under his authority, i.e. he wants a female to supervise him, that may not be possible. In my opinion he is not capable of understanding the nature and effect of Restricted Practice Orders or alternatively if he does understand, he cannot guarantee to adhere to them and is more likely than not to rebel against them. (3) Is [the respondent] capable of freely and voluntarily making decisions about whether to consent to a Restrictive Practice Order, both generally and as it may apply to him, if he is released on a Community Supervision Order? Again, it is very difficult to discuss with [the respondent] in any rational and reasoned way the type of restrictions that might apply. His answers change from compliance with the idea that they may be applied, to angry resistance to the enforced monitoring of closed doors and windows at night, supervised by male staff. I do not think he can freely and voluntarily make such decisions.”10 [26] Dr Brown in her supplementary report dated 12 September 2023 provided an opinion including as follows: “Section B: Interview With [the respondent], 31st August 2023 Presentation “[The respondent] was interviewed in person in Wolston Correctional Centre. He presented in prison attire, with an outgrown short hair cut. He was missing some of his front teeth. As per previous interviews, he was irritable and agitated at the start of the interview due to the change in routine and disruption to his usual activities. He calmed once the assessment had started and he engaged 10 Dr Moyle’s Report dated 29 August 2023, 25-7. The paragraphing is added. -- 11 of 19 -- 12 reasonably well, although he remained mildly agitated and overfamiliar. He had a rather intense stare at times and he lacked non-verbal reciprocity. His speech was loud (possibly due to a hearing defect) and mildly slowed. His mood was euthymic, reactive and mildly elevated at times. There were no neurovegetative changes. He was not suicidal and he did not report violent ideation. His thoughts were circumstantial and tangential at times, requiring prompts to stay on topic. He did not present with psychotic symptoms. He confirmed that he was working as a landscape gardener and that he enjoyed his work. He kept a fairly fixed routine; work, followed by a shower, TV and sleep. Legal matters When asked about the current stage of his legal matters, [the respondent] said, ‘I don’t know anything…I’ll want someone to keep an eye on me…help me with money….I don’t want the public trust.’ When asked again he said, ‘you tell me?’ He was aware that he was subject to some type of Court order and therefore detained in prison, but he could not further explain the details (ie that he was on a Continuing Detention Order under the DPSOA). When I informed him of same he appeared surprised and stated, ‘I am not a dangerous prisoner.’ [the respondent] was more aware of the potential for release to a supervision order (presumably because this had been repeatedly discussed with him) and that he would have to abide by the conditions of such an order. He was aware that if he did not, he could be returned to prison. When asked about the legal system more generally, [the respondent] stated that he was aware of ‘legal aid’ but he was unable to explain the role of legal aid other than to advise that he found them to be unhelpful. He said that a judge ‘makes the ruling.’ He could not explain the role of a jury. He had no awareness or appreciation of the roles of (and differences between) prosecution and defence lawyers. [The respondent] was able to explain the meaning of the word guilty and not guilty and he contextualised the word ‘evidence’ as ‘you look for evidence of a crime.’ He was not able to give an example of what types of evidence might be presented in a court case (or his court case). He defined a witness as ‘someone to stand up in Court and to be a witness to someone else’s crime.’ He was not aware of other types of witnesses and he could not explain why doctors were involved in his legal matters (or the role of an expert witness). He said that he could not follow proceedings in the Court and he could not explain the process of or reason for examination / cross examination. He was aware that he could appeal a decision made by a Court, but he reported that legal aid did not have the skills to do so. [The respondent] said that he was visited by a woman (presumably DPSOA case manager) in the prison every fortnight, ‘she tells me what I need to know…but I don’t pay much attention, I can’t remember what she tells me.’ NDIS Plan / Restrictive Practices [The respondent] was aware of the NDIS plan for him to live in some sort of supported accommodation. However, later in the interview he stated that he would prefer to live in a cabin by himself rather than in shared NDIS -- 12 of 19 -- 13 accommodation. He also said that he would like to work for the Salvation Army or other charity so as to keep himself occupied. He did not express any concern about (and was passively agreeable to) the potential for restrictive practice (eg locked windows and doors), but again he had very little insight into his vulnerabilities and risks that would form the basis of an application for same. Health [The respondent] could not give any details about what medications were prescribed to him. He said that he took the medications because the prison doctor had told him to do so (ie that the medical advice was in his best interests). He initially said that he would be happy to see a psychologist in the community, but he dismissed the idea that he was a risk of reoffending and he said that he would not accept psychological treatment if he had to pay for it. He denied that he had an active sexual drive or that he wanted a relationship. Section C: Opinion and Recommendations Specifically I am asked to address whether [the respondent] has capacity to make informed and rational decisions with respect to: Whether to engage a lawyer; Whether to present evidence; The type of evidence to be presented; Whether to cross-examine witnesses; What questions to ask in cross-examination; What submissions to make; Whether to initiate or defend an appeal; And: Is [the respondent] capable of making a rational decision about whether he should submit to medical treatment as directed; Is [the respondent] capable of understanding the nature and effect of a Restrictive Practice order, both generally and as it may apply to him if he is released on a supervision order? Is [the respondent] capable of freely and voluntarily making decisions about whether to consent to a Restrictive Practice order, both generally and as it may apply to him if he is released on supervision? In response to questions 1-7 inclusive: In my opinion [the respondent] has a very basic understanding of the role of a lawyer (as an advocate for him in Court) and he is aware of the process of engaging a lawyer in respect of his legal matters. However his capacity to -- 13 of 19 -- 14 instruct a lawyer is limited due to his difficulties understanding court processes and the reasons for his current detention. [The respondent] has circumstantial and tangential thought processes and his ability to stay on topic is limited. His memory and processing speed is also poor. His ability to follow proceedings (even in a basic sense) will therefore be compromised. He will be unable to properly understand, process and appropriately respond to more complex material and/ or evidence given against him. [the respondent] had a very basic understanding of the meaning of the word ‘evidence’ but he did not have an appreciation of the different types of evidence that could be presented in court or the associated consequences. He did not understand the role of a psychiatrist as expert witnesses in his case, or the reasons for examination and cross examination. [The respondent] could only explain his legal situation in very basic terms and he had very little insight into his risk of reoffending. He would not be able to generate logical questions for examination / cross examination or submissions. He was aware of his right to appeal, but he lacked an understanding of how that might be achieved. He appeared to passively accept his situation (in part I think due to his level of institutionalisation), but he had very little comprehension of how he might go about challenging or changing it. He was confused about the various professionals involved in his case (for example he was not sure of the reason for the fortnightly visits from his case manager) and he admitted that he usually forgot the information provided to him. In response to questions 8-10 inclusive: In relation the possibility of restrictive practices, [the respondent] stated he was agreeable, but without proper understanding of the associated risks and benefits. It was my impression that his stated agreement stemmed from a wish to be released from prison, rather than representing a capacitous decision. Regarding a Restrictive Practices Order, I was not convinced that [the respondent] would longitudinally consent (or indeed remember the reasons for the order). [The respondent] is generally compliant with his medication in prison, although he had only a limited understanding of his medication regime. He may have capacity to consent to basic health decisions, but he would need assistance with more complex decision making. Overall it is my opinion that [the respondent] does not have the capacity to make informed and rational decisions with regards to questions 1-10 inclusive and that a referral should be made to the Queensland Civil and Administrative Tribunal for consideration regarding the appointment of a Guardian for health, personal, legal and financial matters.”11 [27] Dr Brown’s and Dr Moyle’s further oral evidence at the hearing was consistent with the opinions expressed in their reports and provides further guidance on the respondent’s individual characteristics and the impact on his capacity. 11 Dr Brown’s Report dated 12 September 2023, 7-10. -- 14 of 19 -- 15 [28] At the hearing on 19 February 2024, Dr Brown gave oral evidence including as follows: (a) “the intellectual disability [is] the main problem here”,12 as opposed to the respondent’s diagnosis of psychopathy. (b) The respondent has “an IQ of 57, which places him in the mild intellectual disability range, but he also has a number of deficits as picked up by the occupational therapists”.13 (c) The respondent “has problems with … his working memory. So it’s hard for him to retain information and then use that information appropriately, including areas such as supervision conditions, respond to treatment. He has problems with his processing speed, which means it takes him longer than the average person to take on board information, manipulate it cognitively and then deal with it. He also has problems with executive function, which broadly means abstract problem solving".14 (d) The respondent “doesn’t understand, really, other than the court has put him in prison, why he is in prison. He doesn’t understand why he needs to be released on a supervision order because he doesn’t really see his offending as that serious and he doesn’t relate a supervision order back to management of his own risk”.15 (e) The respondent “has trouble understanding and remembering what the legal issues are in relation to his offending and in relation to risk and the DPSOA, for all the reasons I’ve already articulated. So then to be able to give meaningful instructions in relation to these matters … he is highly compromised.”16 (f) Dr Brown’s clinical view on the adequacy of the NDIS package was that it is “not sufficient at night for the management of risk to self and others, but mostly risk to others”.17 (g) In respect of the matters that QCAT should consider on any referral, Dr Brown considers that “all matters that are available to be considered should be considered. So that would include health, legal matters and … living arrangements… all areas of community living and decisions associated with that.”18 [29] At the hearing on 19 February 2024, Dr Moyle gave oral evidence including as follows: (a) The respondent is “suffering from both …. a borderline intellectual disability from birth and a developed… a neurocognitive disorder on top of that that has lowered his intellectual ability. So he now functions as a mild, heading towards the moderate range of intellectual disability.”19 12 T.1-11 (37-38). 13 T.1-12 (19-21). 14 T.1-12 (31-36). 15 T.1-12 (43-47). 16 T.1-16 (34-38). 17 T.1-27 (18-19). 18 T.1-29 (6-10). 19 T.1-39 (21-24). -- 15 of 19 -- 16 (b) Further, in respect of the respondent’s epilepsy the “obvious clinical implication is he’s more likely to have seizures and, therefore, more likely to suffer brain injury from the seizures.”20 (c) The respondent’s capacity to make decisions and undertake judgments is affected by the injuries to his temporal lobes. As a result, his decisions and judgment making is “unreliable”.21 The judgments are made “at the moment” and also “depend on how he’s feeling”.22 (d) The question of the respondent’s needs in the community is “highly complex” and the respondent “won’t be able to analyse all [the] factors.”23 The respondent is “unable to support himself, even simple tasks as making sure he cooks food correctly without getting ill, so he can’t look after his self-care needs. He can’t make decisions rationally about his medication compliance because he might not agree with it and, therefore, will disagree with it, without being able to analyse all of the implications, positive and negative, of doing so. As far as behaviours go, if he got an urge to do something, he won’t necessarily weigh up all the pros and cons, the moral reasoning, and all of that, about that, so he might do something that’s disinhibited or impulsive, or the like, and his decisions are likely to be reasonably impulsive, but more importantly inconsistent. What he decides at one moment in time might not be what he decided 10 minutes later, let alone an hour later.”24 (e) Further, “as far as risk to the community goes, he needs somebody that can guide his moral decision making and prevent his egress if he’s going to sneak out and … in some sort of planned way… to get out into the community where he doesn’t have the capacity to look after all of his needs and where … you can’t rely on him not to reoffend sexually”.25 (f) It is “very” important for the NDIS to consider active supervision of the respondent overnight.26 (g) The respondent has “very little idea of what supervision might mean”.27 (h) For the respondent to be in the community, Dr Moyle considers that it would require “a home … with the NDIS support and a package that includes the capacity with a positive behavioural management plan, including restrictive practices, he could live in an ordinary house with all the niceties of living at home. He would have available to him somebody who could both ensure that he gets his meals, that he gets his medicines, that he ... has advice... to direct him as to whether … to go out. He would have available to him access to the community which he can’t have in jail. So, NDIS support workers might be able to take him fishing or doing… some safe activities while he’s accompanied by a male person that he can’t do from jail. And his quality of life could 20 T.1-39 (44-45). 21 T.1-41 (25). 22 T.1-41 (28-29). 23 T.1-41 (46-47). 24 T.1-42 (1-11). 25 T.1-42 (27-32). 26 T.1-43 (12). 27 T.1-43 (15). -- 16 of 19 -- 17 improve considerably. And at the same time, his decision making on moral grounds could be guided and … if necessary, overseen and … restricted”.28 (i) The respondent “couldn’t give informed consent” in relation to medical issues.29 (j) The respondent “can’t manage finances”.30 (k) Dr Moyle considers that based on his intellectual capacity the respondent is not able to make decisions that a litigant needs to make in relation to legal proceedings. He does not have the “capacity to instruct a lawyer about a lot of areas of his life”.31 (l) In relation to what matters the respondent needs by way of a substituted decision-maker, “he needs guardianship for a widespread a range of aspects that guardianship can be provided”.32 [30] Further, the supplementary report of Dr Luke Hatzipetrou dated 19 February 2024 is also of assistance and is consistent with the concerns as to the respondent’s capacity identified in the reports of Dr Brown and Dr Moyle. [31] In the circumstances, I accept the clinical evidence33 and I am satisfied on the evidence that the respondent has an impaired capacity for the purpose of rule 72 UCPR. Is the appointment of a litigation guardian under the UCPR appropriate? [32] The Court has power to appoint a litigation guardian, but it is necessary to consider whether that is appropriate in the particular circumstances. [33] The respondent has a mild intellectual disability, and his capacity is impaired in respect of legal, personal, accommodation and service provision decisions. Given the nature of proceedings under the DPSO Act, decisions of this nature are highly relevant and may have significant potential impacts on the liberty of the respondent. [34] In respect of the respondent, taking into account the evidence as to his incapacity and the need to consider legal matters as well as personal matters (including accommodation and service provision matters), it is not appropriate to appoint a litigation guardian by order of the Court pursuant to the UCPR.34 Should the issue of the respondent’s capacity be referred to QCAT? [35] As discussed in Attorney-General for the State of Queensland v SLS: 28 T.1-44 (3-14). 29 T.1-44 (23-24). 30 T.1-44 (27). 31 T.1-44 (46). 32 T.1-45 (8-9). 33 In this case the evidence is more detailed and comprehensive than in the decisions in Attorney-General for the State of Queensland v SLS and Attorney-General for the State of Queensland v FPN as the experts had the benefit of those decisions and their opinions follow the structure set out in the decisions. 34 Further, there is no evidence identifying an appropriate individual to act as litigation guardian, in any event. -- 17 of 19 -- 18 (a) Where the issue of capacity has arisen, this Court should take steps to ensure that the interests of the person with impaired capacity are adequately protected. This is also consistent with the issues to be considered by QCAT under s 12 GA Act. (b) Parliament has given QCAT the exclusive jurisdiction to consider and determine capacity and to appoint a guardian or administrator if necessary. (c) Where impaired capacity is identified on a preliminary basis, the issue should be referred to QCAT to consider and determine capacity in accordance with the functions and powers in the GA Act. [36] This Court only needs to be satisfied of impaired capacity as a threshold issue to make a referral and then QCAT is to undertake the necessary investigations and make a declaration and/or appoint a guardian or administrator with such conditions as necessary given the findings in respect of the respondent’s capacity. [37] In the current case there is more than sufficient evidence to be satisfied that it is appropriate to exercise the power to refer the question of the respondent’s capacity to respond to DPSO Act proceedings to QCAT to determine the respondent’s capacity in accordance with the GA Act. [38] Further, it appropriate to make similar orders to the orders made in Attorney-General for the State of Queensland v SLS and Attorney-General for the State of Queensland v FPN. [39] Whilst this is the third annual review and there is no prescribed time as to when it needs to be completed by, it is still appropriate that: (a) QCAT deal with the referral as expeditiously as possible; and (b) the Registrar of the Supreme Court obtain an update from the Registrar of QCAT as to the progress of the matter. [40] The provision of this update enables the matter to be relisted for review in the Supreme Court if the referral is not dealt with within a reasonable time. [41] I consider it appropriate to make some further comments about the issues which arise in the current case which may assist further in the consideration of the respondent’s relevant capacity in respect of legal and personal matters: (a) Whilst proceedings under the DPSO Act are civil, they are more complicated in nature than “ordinary” civil proceedings. (b) The particular characteristics and circumstances of the respondent make this matter even more complex than usual. The current matter gives rise to the interaction between various factors including: (i) A respondent with an intellectual disability that is not likely to improve35 and there is a possibility that the respondent’s capacity may deteriorate further.36 35 For example, in contrast to a mental illness that may improve with treatment. 36 For example, if he suffers a further brain injury as a result of seizures. -- 18 of 19 -- 19 (ii) The identification of risks to both the respondent and the community that flow from the respondent’s intellectual disability. (iii) The clinical evidence in the DPSO Act proceedings suggests that the only potential for supervised release from detention involves the application of a dual system of confinement, namely supervision under the DPSO Act and “Restrictive Practices” under the Disability Services Act 2006 (Qld). (iv) Provision of services under the NDIS is an essential consideration and there is a potential need for services in addition to the currently approved “package” to meet the identified risks: 37 (A) to the safety of the respondent; and (B) the risks to the safety of the community under the DPSO Act. [42] The first step in the process is for the respondent’s capacity to be considered and, if appropriate, a guardian and/or administrator appointed. The Court proceedings can then continue. If it becomes necessary at a later stage, further consideration may be given to “Restrictive Practices” under the Disability Services Act 2006 (Qld). There is no need for that step to be determined at this stage, other than in relation to whether the respondent has capacity to understand and make rational decisions in respect of the possibility of such measures being required. [43] The intersection of these complex issues is concerning where the respondent clearly does not have the capacity to make rational decisions about a number of fundamental matters relevant to the third annual review under the DPSO Act and his liberty is in issue. [44] The impaired capacity of the respondent gives rise to issues of his legal representatives being able to act, or continuing to act, on his behalf in these and any other proceedings. Ethical considerations may constrain the ability of lawyers and Counsel to protect the interests of the respondent without a guardian being appointed in respect of legal matters. [45] It is essential that the respondent’s capacity be carefully and properly considered in this context, with particular attention to personal, accommodation, provision of services (NDIS) and legal matters. [46] Consideration of the full transcript of the oral evidence of Dr Brown and Dr Moyle (in addition to the written reports) may be particularly helpful to QCAT as the various aspects and implications of the respondent’s impaired capacity were explored. 37 The necessary level of support would need to be approved and maintained to adequately address the risks. -- 19 of 19 --