Attorney-General for the State of Queensland v YSG [2024] QSC 23

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v YSG [2024] QSC 23 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v YSG (respondent) FILE NO/S: BS No 11642 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 February 2024 DELIVERED AT: Brisbane HEARING DATE: 20 February 2024 JUDGE: Williams J ORDERS: 1. The question of the respondent’s capacity to respond to the proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) pending in the Supreme Court in BS 11642/21 be referred to the Queensland Civil and Administrative Tribunal (QCAT) for determination. 2. The application for annual review pursuant to Part 3 of the Act be listed for review on 11 April 2024 at 9:15am. 3. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material: (a) A copy of the reasons to be delivered; (b) A copy of the transcript from the hearing on 20 February 2024; and (c) A copy of the following documents from Supreme Court file BS 11642/21: (i) Affidavit of L Hatzipetrou filed 14.07.2022 (CFI 42); (ii) Affidavit of L Hatzipetrou filed 14.07.2023 (CFI 51); -- 1 of 19 -- 2 (iii) Affidavit of J J Sundin filed 14.07.2023 (CFI 52); (iv) Supplementary affidavit of J J Sundin filed 01.08.2023 (CFI 57); (v) Second supplementary affidavit of J J Sundin filed 23.01.2024 (CFI 66); (vi) Affidavit of K Brown filed 22.09.2023 (CFI 63); (vii) Supplementary Affidavit of Jesika Lee Franco sworn 16 June 2022 (CFI 38); (viii) Order of Bradley J made on 22 October 2021 (CFI 21); (ix) Judgment of Bradley J published on 22 October 2021: Attorney-General for the State of Queensland v [the respondent] [2021] QSC 289 (CFI 22). 4. 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 28 March 2024. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where there is before the Court an application for annual review pursuant to Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the current proceedings are the first annual 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 -- 2 of 19 -- 3 COUNSEL: J Tate for the applicant J D Briggs for the respondent as amicus curiae SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent as amicus curiae [1] On 14 July 2023 the applicant filed an application under s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) to commence the first annual review of the respondent’s continuing detention order made by Justice Hindman on 25 July 2022.1 [2] The hearing of the first annual review was scheduled for 28 August 2023 but was vacated due to concerns raised by the legal representatives for the applicant and the respondent. The issue raised was whether the respondent is “a person with impaired capacity” such that he cannot make the decisions required of a litigant in proceedings under the DPSO Act. [3] The applicant obtained supplementary reports focussed on the issue of the respondent’s capacity from Dr Sundin2 and Dr Brown.3 [4] The issue of whether the respondent is a person with impaired capacity was listed for consideration by the Court on 20 February 2024. Given the clinical evidence in respect of the respondent’s capacity, at the hearing the appearance on behalf of the respondent was as amicus curiae. [5] Both Dr Brown and Dr Sundin also gave further oral evidence at the hearing on 20 February 2024 in respect of the respondent’s capacity. [6] It was not contentious at the hearing that the clinical evidence clearly establishes that the respondent is “a person with impaired capacity”. Further, it was not contentious that the question of whether a guardian should be appointed under the Guardianship and Administration Act 2000 (Qld) (GA Act) should be again considered by the Queensland Civil and Administrative Tribunal (QCAT). [7] The evidence clearly establishes that the central issue is the appointment of a guardian for legal matters. However, personal, accommodation, provision of services (NDIS)4 and legal matters need to be considered in respect of the respondent. [8] At the conclusion of the hearing on 20 February 2024 the following orders were made: “THE ORDER OF THE COURT IS THAT: 1. The question of the respondent’s capacity to respond to the proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) pending in the Supreme Court in BS 11642/21 be referred to the Queensland Civil and Administrative Tribunal (QCAT) for determination. 1 [2022] QSC 192. 2 Report dated 8 October 2023. 3 Report dated 13 September 2023. 4 National Disability Insurance Scheme. -- 3 of 19 -- 4 2. The application for annual review pursuant to Part 3 of the Act be listed for review on 11 April 2024 at 9:15am. FURTHER, THE COURT DIRECTS THAT: 3. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material: (a) A copy of the reasons to be delivered; (b) A copy of the transcript from the hearing on 20 February 2024; and (c) A copy of the following documents from Supreme Court file BS 11642/21: (i) Affidavit of L Hatzipetrou filed 14.07.2022 (CFI 42); (ii) Affidavit of L Hatzipetrou filed 14.07.2023 (CFI 51); (iii) Affidavit of J J Sundin filed 14.07.2023 (CFI 52); (iv) Supplementary affidavit of J J Sundin filed 01.08.2023 (CFI 57); (v) Second supplementary affidavit of J J Sundin filed 23.01.2024 (CFI 66); (vi) Affidavit of K Brown filed 22.09.2023 (CFI 63); (vii) Supplementary Affidavit of Jesika Lee Franco sworn 16 June 2022 (CFI 38); (viii) Order of Bradley J made on 22 October 2021 (CFI 21); (ix) Judgment of Bradley J published on 22 October 2021: Attorney- General for the State of Queensland v [the respondent] [2021] QSC 289 (CFI 22). 4. 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 28 March 2024.” [9] These are the reasons for making those orders. The approach to the issue of whether the respondent is a person with impaired capacity [10] 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. [11] These decisions concerned questions of impaired capacity by reason of mental illness and a combination of mental illness and intellectual disability respectively. [12] The issue in the current matter involves consideration of impaired capacity by reason of an intellectual disability constituted by a “cluster” of diagnoses including an intellectual impairment from birth with subsequent brain injuries. [13] 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: 5 [2021] QSC 111. -- 4 of 19 -- 5 (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. (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: -- 5 of 19 -- 6 (A) identification of, and procurement if needed, of accommodation and rehabilitation and treatment programs; (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 there is sufficient preliminary evidence to establish that the respondent has an impaired capacity for the purposes of 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] The issue of whether the respondent is a person with impaired capacity arises for consideration on this occasion in rather unusual circumstances. [18] At the Preliminary Hearing under the DPSO Act, Justice Bradley made the usual orders under section 8 of the DPSO Act and also referred the question of the respondent’s capacity to respond to the pending DPSO Act proceedings in the Supreme Court, together with the issues of personal, legal and financial matters, to QCAT for determination.6 [19] Justice Bradley’s reasons state as follows: “[16] In her report, Dr Sundin has identified a separate issue with respect to [the respondent]. It is simplest to quote an extract from her report: Taken globally, my impression was that [the respondent] was a man with a constitutional intellectual disability, who was poorly socialised and prone to emotional dysregulation, and acting out behaviour from childhood onwards. As a consequence, he has become estranged from a number of supports. His preexisting intellectual impairment was likely aggravated by an acquired brain injury in 1998, which appears to have caused further frontal lobe damage and greater impairment of his capacity to 6 [2021] QSC 289. -- 6 of 19 -- 7 inhibit impulses. His antisocial behaviour has been escalated by his prolonged and quite profound alcohol use disorder. He has a significant history of frequent intoxication. Intoxication appears to be the enduring feature of his serious offences. [The respondent] has experienced multiple adverse consequences from his alcohol abuse over the years. Historically, he appears to have suffered physical abuse and exploitation from drinking associates. His angry outbursts and aggressive actions have been escalated when he has been intoxicated. His quite significant cognitive impairments have interfered with his capacity to accept and recognise that he does have difficulties with behavioural dysregulation and adverse consequences from alcohol consumption. He has not understood the necessity of participating in rehabilitation programs, perceiving that he had the capacity to do full time and be released without the need to participate in such programs. Various interviewers have commented on his general reduced comprehension and his difficulty retaining information. He has been repeatedly offered participation in sexual offenders treatment programs and drug and alcohol treatment programs. [17] Elsewhere in her report, Dr Sundin specifically recommends that a guardian be involved for legal, health and financial decision-making to assist [the respondent]. [18] The question about capacity raised in Dr Sundin’s report has important implications for his participation and response to the process he is presently involved in in this court. It is evident that there is an issue about whether the degree of his current intellectual impairment affects his capacity to make the decisions required or appropriate for someone in his position in this proceeding. He has an established diagnosis of intellectual development disorder, which is assessed as moderate, and a probable co-morbid neurocognitive disorder, which is secondary to an acquired brain injury. These disorders are, clinically speaking, profound and they are not likely to alter over time.” [20] The Supreme Court proceedings were stayed until the issue of the respondent’s capacity was determined by QCAT. [21] On 10 May 2022 QCAT made orders: (a) Appointing the Public Guardian for personal matters, being accommodation and provision of services including the NDIS; and (b) Appointing the Public Trustee for financial matters. -- 7 of 19 -- 8 [22] The respondent was found to have capacity to respond to these proceedings.7 This conclusion is unsatisfactory in several respects: (a) The reasoning in respect of the respondent’s legal capacity does not engage with the psychiatric evidence which was included in the material sent to QCAT as part of the referral. (b) The reasoning does not engage with the approach set out in Attorney-General for the State of Queensland v SLS (2021) 8 QR 1288 and Attorney-General for the State of Queensland v FPN [2021] QSC 110, which set out the types of questions to be considered in an assessment of capacity for the purposes of a civil proceeding, and a DPSO Act proceeding in particular. (c) The reasoning does not consider or engage with the statutory task under the GA Act. (d) The reasoning fails to recognise the seriousness and gravity of the task of assessing someone’s legal capacity where there is clear evidence of impaired capacity due to an intellectual disability, particularly in the context of DPSO Act proceedings. [23] The Supreme Court proceedings under the DPSO Act proceeded to a Division 3 hearing in July 2022 and Justice Hindman made further relevant comments about the nature and extent of the respondent’s incapacity as follows: “In terms of the respondent’s impairment, Dr Sundin notes that he has significant cognitive impairments that have interfered with his capacity to accept and recognise that he does have difficulties with behavioural dysregulation and adverse consequences from consumption of alcohol. He has not understood the necessity of participating and rehabilitation programs, perceiving that he had capacity to do the full time and be released without the need to participate in such programs. Various interviewers have commented on his general reduced comprehension and his difficulties in retaining information. Dr Sundin has diagnosed the respondent as suffering from intellectual development disorder of a moderate nature; probable comorbid neurocognitive disorder secondary to acquired brain injury; alcohol use disorder, although in sustained remission whilst in a controlled environment; and antisocial personality traits. […] Dr Timmins is a consultant psychiatrist who provided a report in response to the orders made at the preliminary hearing. Dr Timmins diagnoses the respondent as suffering from antisocial personality traits, if not a disorder; substance abuse disorder, mainly alcohol but in sustained remission in controlled environment; and a neurodevelopmental disorder with a full-scale IQ of between 58 to 66, which falls within the moderate range of impairment. […] 7 Exhibit JLF-10, 1 of affidavit of Jesika Lee Franco sworn 16 June 2022. 8 [2021] QSC 111. -- 8 of 19 -- 9 Dr Brown has indicated that the respondent has significant support needs in the community and will require a 24-hour supported male- only environment, that he will require assistance with activities of daily living, financial management and the establishment of a prosocial routine without use of substances. Dr Brown’s ultimate view is that the respondent’s risks cannot be safely managed in the community at this time.”9 [24] The DPSO Act procedures have now advanced to the stage of the first annual review and the issue of the respondent’s capacity has again been identified in the opinions provided by the reporting psychiatrists, Dr Brown and Dr Sundin. [25] Relevantly, Dr Brown in her report for the first annual review states: “I note that the Public Guardian is now appointed for accommodation and services (including NDIS), however there is no appointment in relation to legal or health matters. I remain of the opinion that [the respondent] does not properly understand the DPSOA process, he is easily confused between the DPSOA process and other legal processes (for example QCAT), and his appreciation of a supervision order is extremely basic (and it is not clear that he fully understands the consequences of non-compliance with such an order). I further note that he has refused a number of health interventions and investigations without properly understanding the consequences. A re-referral to QCAT may therefore be indicated.”10 [26] Further, Dr Sundin in her report for the first annual review states: “In my opinion, [the respondent] is an individual who will require 24/7 supervision in suitable accommodation (locked male ward in a residential care facility) with financial, occupational and social supports provided by the National Disability Insurance Scheme. He continues to need assistance from the Public Guardian regarding legal, financial and health decisions. Despite his belief that he can safely live independently; I consider that he is significantly cognitively impaired, highly institutionalised and incapable of living independently.”11 [27] At the Division 3 Final Hearing, the respondent was examined by Dr Sundin, Dr Timmins and Dr Brown for the purposes of the Division 3 Final Hearing. The respondent was diagnosed as suffering from:12 (a) Dr Sundin (i) Intellectual Developmental Disorder (moderate); (ii) Probable co-morbid Neurocognitive Disorder (secondary to acquired brain injury); 9 [2022] QSC 192, 4-5 (Hindman J). 10 Dr Brown’s Report dated 7 August 2023, 33. 11 Dr Sundin’s Report dated 13 June 2023, 11. 12 Affidavit of Dr Josephine Sundin sworn 6 July 2021, Exhibit JJS-2, 41; Dr Timmins’ Report dated 22 December 2021, 37; Dr Brown’s Report dated 14 November 2021, 21. -- 9 of 19 -- 10 (iii) Alcohol Use Disorder (in sustained remission in controlled environment); and (iv) Antisocial Personality Traits. (b) Dr Timmins (i) Anti-social Personality traits, if not a disorder; (ii) Substance Use Disorder – mainly Alcohol (in sustained remission in a controlled environment); and (iii) Neurodevelopmental Disorder with a full-scale IQ of 58-66 (which falls within the moderate range of impairment). (c) Dr Brown (i) Mild Intellectual Disability (further complicated by an acquired brain injury with associated impairment in adaptive functioning); (ii) Antisocial Personality Disorder; and (iii) Substance Use Disorder (alcohol and cannabis). [28] The evidence for the first Annual Review indicates there has been no material change to the above diagnostic formulation.13 [29] As identified above, for the purposes of considering the issue of whether the respondent is a person with impaired capacity, Dr Brown and Dr Sundin prepared supplementary reports focussing on this issue. [30] Dr Brown in her report dated 13 September 2023 relevantly states: “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 and he was reasonably groomed. As per previous interviews, he was easily distracted during the interview and his reciprocal non- verbal communication was limited. He was not irritable or threatening. His speech was loud and monotonous and he was mildly anxious about the interview. His mood was euthymic. His thoughts were tangential and circumstantial such that he often struggled to stay on topic (and it was difficult to maintain his engagement in the assessment). He gave a lot of irrelevant detail at times and he had a tendency to perseverate. He did not present with psychotic symptoms. Legal matters [The respondent] brought some documentation with him to the interview (which he could not read). He showed me the names of some of the professionals involved in his legal matters, but he could not explain their specific roles. [The respondent] said the role of a Judge was to, ‘do the talking, make the decisions.’ He did not know the role of a Jury, ‘I don’t know, do they 13 Dr Brown’s Report dated 7 August 2023, 28-9; Dr Sundin’s Report dated 13 June 2023, 10. -- 10 of 19 -- 11 pass the paperwork around?’ He knew the meaning of guilty and not guilty, but he could not explain the meaning of the word evidence or generate different types of evidence that may be presented in Court. He did not understand the role of a witness (or expert witness) and he could not explain why psychiatrists had assessed him or given evidence to the Court. He could not explain the reasons for (or process of) examination / cross examination. He did not understand the process of appeal, ‘how would you do that?…I don’t know.’ [The respondent] had a basic understanding that he was detained on a continuing detention order and that if released this would almost certainly be to a supervision order with associated conditions that he would have to follow. However he later expressed his frustration (and confusion) that he was still in prison after the end of his sentence and he did not properly grasp the extent of the DPSOA legislation or how it might apply to him. His understanding of the reasons for the CDO (his high risk of sexual reoffending) was very low, ‘I don’t know (about my risk), I am just sitting here, they don’t give me a chance, my past is my past….are they going to let me out or not?’ Guardianship and related issues [The respondent] knew the names of professionals in the prison (perhaps psychologists), but again he could not describe their role. He spoke in a rather abstract way about sending a letter to the NDIS, but he was unclear as to which professional had written the letter or the purpose of the correspondence. When asked about the QCAT hearing [the respondent] said, ‘I don’t know much about that.’ When asked again he said, ‘nobody knows nothing about it…is it on the letter?…does it help you with support workers?’ He did not understand the point of a Guardian, ‘who is that? Is that the person who is in control?’ He struggled to understand why I had returned to see him or the reasons for the assessment of capacity (and how this related to QCAT or Guardianship). He could not explain to me the outcome of the 2022 QCAT hearing, ‘did I get more support workers?’ As per previous interviews, [the respondent] did not know the names of his medical conditions or medications. He had a poor grasp of why the medications were prescribed and the roles of the various medical staff in the centre. [The respondent] stated that he would like to live in some sort of supported accommodation but he would prefer the support worker to live upstairs. He advised that he was able to look after himself reasonably well but that he would need assistance to go out into the community. Regarding restrictive practices, when it was explained to him, [the respondent] gave a rather institutionalised response, ‘I would be happy if they would open the doors in the morning for the yard.’ He advised that he would not object to (for example) locked windows and doors, but he later asked if he could have his own key. He did not appreciate the reasons that restrictive practices may be utilised. He spoke (unprompted) about his school friend and his friend’s mother, specifically that he wanted to spend time with both on release (he said three times a week). He indicated that he would like to continue to see Dr Hatzipetrou on release including for social occasions such as a barbecue. Section C: Opinion and Recommendations -- 11 of 19 -- 12 As per the letter of instruction, I have considered whether [the respondent] has capacity to make informed and rational decisions with respect to: 1. Whether to engage a lawyer; 2. Whether to present evidence; 3. The type of evidence to be presented; 4. Whether to cross-examine witnesses; 5. What questions to ask in cross-examination; 6. What submissions to make; 7. 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: [The respondent] is a 57 year old, Caucasian Australian, single man from Brisbane in Queensland. He was likely born with an intellectual disability which was further complicated by an acquired brain injury that was probably sustained in adolescence secondary to a fall from a rooftop. He may also have sustained a head injury in a car accident in 1998 (aged 32). He has a full scale IQ of between 58 and 66. In my opinion [the respondent] does not properly appreciate his risk of reoffending and he does not understand why he is still in prison. He has a very basic understanding of the role of a lawyer, but he has a tendency to confuse various NDIS and QCS professionals with his legal team. [The respondent] presents with tangential and circumstantial thought processes and problems staying on topic, such that he would find it hard to follow Court proceedings. He has a poor understanding of Court processes which would limit his ability to engage a lawyer and to provide proper instructions. He lacks the ability to instruct regarding the presentation of evidence or the ability to appropriately respond to evidence against him (including expert witness evidence). He does not know the role of a witness, he does not understand the process or reasons for cross examination and he would not be able to generate submissions. He cannot explain the process of appeal. Of note [the respondent] has almost no understanding of the reasons for or the outcome of the QCAT hearing (2022), despite being present throughout. Regarding questions 8-10 inclusive: [The respondent] is generally compliant with prescribed medication in prison, although he does not properly understand his medication regime. He likely has -- 12 of 19 -- 13 capacity to consent to basic health decisions, but he would need assistance with more complex decision making. He will probably attend for psychological treatment if he has a good relationship with his therapist (as he enjoys the social aspect), but his understanding in relation to the reasons for the treatment is poor. In relation the possibility of restrictive practices, [the respondent] stated at interview that he was agreeable, but he did not properly understand his rights or the relevant legislation. I considered that his passive agreement was secondary to institutionalisation and a poor grasp of the proposed restrictions, rather than representing a capacitous decision. Overall it is my opinion that [the respondent] does not have the capacity to make informed and rational decisions with regards to health and legal matters and that a referral should be made to the Queensland Civil and Administrative Tribunal for consideration regarding the appointment of a Guardian.”14 [31] Dr Sundin in her report dated 8 October 2023 relevantly states: “With respect to your questions: (1) Is [the respondent] capable of making a rational decision about whether he should submit to medical treatment and care, as directed [noting your opinions in your report dated 13 June 2023 at pages 9-12 inclusive] and Dr Brown’s opinions in her report dated 7 August 2023, at pages 28-34 inclusive]? No, in my opinion [the respondent] is not capable of making a rational decision as to whether or not he should submit to medical treatment and care. I note that in the past he has refused both health investigations and interventions without a proper appreciation of the potential adverse consequences of such decisions. (2) Is [the respondent] capable of understanding the nature and effect of a Restrictive Practices Order, both generally and as it may apply to him if he is released on a supervision order [noting your opinions in your report dated 13 June 2023 at pages 9-12 inclusive] and Dr Brown’s opinions in her report dated 7 August 2023, at pages 28-34, inclusive]? No, in my opinion [the respondent] is not capable of understanding or consistently remembering the nature of a Restrictive Practices Order. He is unlikely to comply with the requirements of a supervision order beyond those aspects which suit him. He is likely to impulsively breach a supervision order with little thought as to the adverse repercussions for himself or others. He is likely to reject any aspect of the supervision order which does not accord with his wishes. He is likely to become elevated and aggressive when directed to comply with clauses. (3) Is [the respondent] capable of freely and voluntarily making decisions about whether to consent to a Restrictive Practices Order, both generally and as it may apply to him if he is released on supervision [noting your 14 Dr Brown’s Report dated 13 September 2023, 6-9. -- 13 of 19 -- 14 opinions in your report dated 9 June 2023 at pages 9-12 inclusive] and Dr Brown’s opinions in her report dated 7 August 2023, at pages 28-34, inclusive]? [The respondent] lacks insight into his incapacities. He has a constitutional intellectual disability which has been compounded by an acquired brain injury. He has been left with impaired judgement, high levels of vulnerability to stress, poor capacity for emotional self-regulation and a pattern of impulsivity. As a consequence, I do not consider that he has the capacity to voluntarily make decisions as to whether to consent to a Restrictive Practices Order. (4) Does [the respondent] have legal capacity? In my opinion, [the respondent] lacks legal capacity. He probably knows about engaging a lawyer but may not appreciate the necessity of one. He would be incapable of selecting what is the best evidence to present on his own behalf and would struggle to challenge any evidence in dispute, except in an abrupt and possibly inappropriate manner within the court. Any questions he wanted posed in cross examination would be simplistic. He does not understand the concept of submissions or appeals.”15 [32] The oral evidence of Dr Brown and Dr Sundin at the hearing on 20 February 2024 is also of assistance on the issue of the respondent’s capacity. [33] Dr Brown gave further oral evidence including as follows: (a) The respondent’s capacity is “largely impaired by the neurocognitive disorder that he has. He also has a personality disorder and an alcohol use disorder, but his limitations of capacity in the broad range of domains are mostly significantly associated with the intellectual impairment that he probably had from birth and then the acquired … brain injuries that he’s picked up along the way. And there have been several injuries, essentially amounting to a fairly significant neurocognitive disorder that he now presents with”.16 (b) The respondent’s capacity to make decisions is compromised in respect of all legal proceedings, not just DPSO Act proceedings. (c) In relation to health matters the respondent “would struggle to make decisions about what medical intervention or treatment he may need to seek for a particular ailment. He would struggle to understand the complexities of the treatment offered to him.… He … requires assistance and support in that particular area”.17 (d) The respondent does not have capacity in relation to legal matters. “He knows he has a lawyer, but he doesn’t know much more than that”.18 (e) In relation to the previous QCAT hearing as to the respondent’s capacity, the respondent did not understand what the hearing was for or the point of a 15 Dr Sundin’s Report dated 8 October 2023. The indenting and formatting is added. 16 T.1-11 (17-23). 17 T.1-14 (35-38). 18 T.1-16 (29-30). -- 14 of 19 -- 15 guardian. He was “just bewildered and overwhelmed with the various … legal and other processes or why they were required.”19 (f) The respondent is “grasping at something that he can hang on to, whilst essentially missing ... the importance and relevance of these processes. He just doesn’t have even … a basic understanding of what’s at play”.20 (g) If the current considerations arose in the criminal jurisdiction, the respondent would not meet the Presser criteria. (h) The respondent needs a guardian for “all important areas that would be considered by a guardian, and that would include health, legal matters, personal decision making, supports and living arrangement… he does not have capacity to make informed health care decisions. He does not have capacity to administer his own legal matters or instruct counsel. And for those reasons … I don’t think he has the ability to manage these … important areas of functioning and …for all those reasons he needs a guardian.”21 [34] Dr Sundin gave further oral evidence including as follows: (a) As to the diagnostic formulations “we’re22 all in complete accord as to the diagnoses and as to [the respondent’s] lack of capacity”.23 (b) The respondent is a “highly institutionalised individual who is completely incapable of living independently within the community. He is an individual who is completely incapable of adequately managing his complex health decisions, caring for his finances, looking after his own self-care … in a wider spectrum, making reasonable medical [decisions] about his own well-being”.24 (c) The respondent is “very much at risk of being exploited by others”.25 Further, “he’s at risk for himself through his inability to adequately self-care, and for the purposes of this court he’s at risk for serious offending.”26 He is at financial risk and also at risk of losing housing as he wouldn’t remember to pay the rent. (d) The respondent is at risk as he does not have appropriate guardianship in place. (e) The respondent is going to need “very high levels of support” through the NDIS and “because he is a vulnerable individual … it is vitally important that [a guardian] take over decision-making for him in the important areas of legal matters, financial matters and medical matters to protect him from himself and from his own brain dysfunction.”27 (f) If the current considerations arose in the criminal jurisdiction, the respondent would not meet the Presser criteria. 19 T.1-17 (15-17). 20 T.1-17 (22-25). 21 T.1-19 (43) - T.1-20 (4). 22 Dr Sundin, Dr Timmins and Dr Brown. 23 T.1-21 (43-44). 24 T.1-22 (16-20). 25 T.1-22 (28-29). 26 T.1-22 (34-36). 27 T.1-23 (20-23). -- 15 of 19 -- 16 [35] Counsel, appearing as amicus curiae in the circumstances, provided some practical insight into the difficulties in obtaining instructions from the respondent: (a) The respondent’s narrative is superficial and is basically “I’m going to be released to a better life”.28 He is unable to engage with the alternative narrative of his current legal position and how he can move forward,29 even when it is explained to him by his lawyers with the right language and approach. (b) When the two narratives join it is only in a very superficial way and usually results in “the lawyers will surrender to the need to keep the legal professional relationship going” and talk about other things. To do otherwise would “just be talking to the wall behind” the respondent.30 (c) The respondent “is patently unfit for trial in the regular court sense and it’s patent that he cannot meaningfully engage with his lawyers with those matters essential to the disposition of this proceeding, or even him following this proceeding”.31 (d) The respondent “does not seem to understand what we are doing here and thinks that he will just somehow transition from jail to fishing, and he doesn’t seem to understand he’s going to go through this process, what it’s about and what’s against him”.32 (e) If the respondent is told what he needs to hear, as opposed to what he wants to hear, he will either truncate the legal professional relationship or he will only hear what he wants to hear. Either way this places the respondent’s lawyers in a very difficult position. (f) The respondent’s “intellectual disability and cognitive impairment resulting from his combined challenges, the brain injury included, means that he approaches a level which I’ve observed of people who present as psychotic from time to time as a result of illnesses. So it’s a very clear case…that [the respondent] needs guardians for him to properly engage in the proceedings, in this review, and thereafter if he’s ever to be released … he will need guardians for the rest of his life.”33 [36] It was ultimately uncontroversial at the hearing that the evidence of two very experienced and thorough clinicians is agreed about all fundamental matters. Further, it is “extremely clear” that the respondent lacks all necessary capacities to engage in DPSO Act proceedings and his additional incapacities can be specifically addressed by the appointment of a legal guardian and guardians for health and services.34 28 T.1-28 (43-44). 29 Firstly under the DPSO Act and towards the conclusion of him being under the DPSO Act regime. 30 T.1-29 (15). 31 T.1-29 (21-23). 32 T.1-29 (28-30). 33 T.1-29 (46) - T.1-30 (5). 34 Being in addition to the matters for which a guardian and administrator have already been appointed. -- 16 of 19 -- 17 [37] In the circumstances, I accept the clinical evidence35 and I am satisfied on the evidence36 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? [38] The Court has power to appoint a litigation guardian, but it is necessary to consider whether that is appropriate in the particular circumstances. [39] The respondent has a moderate 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. [40] In respect of the respondent, taking into account the evidence as to his incapacity and the need to consider legal matters as well as other matters, it is not appropriate to appoint a litigation guardian by order of the Court pursuant to the UCPR.37 Should the issue of the respondent’s capacity be referred to QCAT? [41] As discussed in Attorney-General for the State of Queensland v SLS: (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. [42] 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. [43] In the current case there is no doubt that there is clear 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. [44] 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. 35 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. 36 Including the practical difficulties and observations provided by Counsel in respect of obtaining instructions from the respondent. 37 Further, there is no evidence identifying an appropriate individual to act as litigation guardian, in any event. -- 17 of 19 -- 18 [45] This is the first annual review pursuant to the DPSO Act. The review proceeding needs to be determined by July 2024. Accordingly, there is a need for the issue of capacity to be determined by QCAT expeditiously. [46] To facilitate this, the orders provide for: (a) the Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the matter by 4pm on 28 March 2024; and (b) the application for annual review be reviewed by the Supreme Court on 11 April 2024 at 9.15am. [47] I consider it appropriate to make some further comments about the issues which arise in the current case which may assist 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 improve.38 (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: 39 (A) to the safety of the respondent; and (B) the risks to the safety of the community under the DPSO Act. [48] 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. 38 For example, in contrast to a mental illness that may improve with treatment. 39 The necessary level of support would need to be approved and maintained to adequately address the risks. -- 18 of 19 -- 19 [49] The intersection of these complex issues is concerning where the respondent clearly does not have the capacity to make rational decisions about fundamental matters relevant to the first annual review under the DPSO Act and his liberty is in issue. [50] 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 to protect the interests of the respondent without a guardian being appointed in respect of legal matters. [51] 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. [52] Consideration of the full transcript of the oral evidence of Dr Brown and Dr Sundin (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. -- 19 of 19 --