Re Sally [No 2] [2009] NSWSC 1345

New South Wales Supreme Court

CITATION : Re Sally [No 2] [2009] NSWSC 1345

HEARING DATE(S) : 23 June 2009; 30 June 2009; 30 September 2009; 20 October 2009

JUDGMENT DATE : 15 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Slattery J at 1

DECISION : Orders made on 23 June extended until further order.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether existing orders made on 23 June 2009 should be extended.

PARTIES : Director-General, Department of Family and Community Services and Minister for Family and Community Services (Applicant) Child "Sally" (Respondent)

FILE NUMBER(S) : SC 3346/09

SOLICITORS : Kerri Phillips, Crown Solicitors (Applicant) Clyllyn Sperling, Legal Aid NSW (Repondent)

1 HIS HONOUR: This is the second judgment I have delivered in relation to Sally. I gave my first judgment on 20 October 2009. In that judgment I recorded the reasons for the Court making orders on 23 June 2009 confining Sally to the premises from that day until further order. 2 Sally is a very troubled 15-year-old, who has a lengthy history of self harm. She has often been violent towards her carers and other people. She has caused serious damage to property at places where she has been resident in institutional care or as an in-patient in hospital. 3 Since my first judgment I have reviewed Sally's situation at the premises and at three further Court hearings. The first of these hearings was on 18 August 2009. The second hearing took place on 30 September 2009. Before the second hearing I visited the premises on 22 September 2009. The third hearing took place on 28 October 2009. 4 After the initial orders were made on 23 June 2009 I formed the view that Sally should be monitored particularly closely for the first four months of her time at the premises. This is the reason for holding three hearings a little over a month apart. 5 At each of these three hearings I decided not to vary the existing orders in relation to Sally's confinement at the premises. This judgment analyses the evidence which grounded the decision not to vary the existing orders. 6 The full circumstances of Sally's history leading to her confinement at the premises are set out in detail in my first judgment of 20 October 2009. The first judgment also discusses the legal principles which justify the making of the exceptional orders for Sally's confinement at the premises. This second judgment considers additional evidence about Sally's situation at the premises relevant to the continuation of the orders at the three hearings. I will deal with each of these hearings in turn. The 18 August 2009 Hearing 7 The evidence on 18 August 2009 dealt with all the developments in Sally's care, therapy, education and confinement at the premises between 23 June 2009 and 18 August 2009. On the basis of this evidence I was satisfied that the orders made on 23 June 2009 did not need to be altered. 8 As with the hearings before the first judgment, the Department relied at this hearing upon the evidence of the Manager Client Services. Her evidence provided the Court with an account of the incidents involving Sally up to mid August 2009. 9 The reporting on Sally in relation to her confinement is assisted by the practice at the premises of issuing monthly reports setting out the overall progress of a resident including permanency planning, perspectives on health, education, emotional and behavioural functioning, social and living skills, peer and family relationships and incidents. At the time of the hearing on 18 August 2009 the monthly report for July 2009 had not been completed, so the manager client services worked from the primary materials which would normally be used to compile the premises monthly report. 10 It is not a sensible to go through every one of the incidents in which Sally has been involved during this or subsequent periods. It is sufficient to deal with the more serious incidents which stand out. These incidents help indicate whether or not Sally is making progress. Some of the incidents in which Sally was involved during this first period up to mid August 2009 were similar to those that occurred before she was confined to the premises. It will not always be useful at these hearings to go into this level of detail about incidents. At the first review hearing though, a full account of the incidents in which Sally was involved gave the Court an insight into her exact daily circumstances at the premises. 11 Sally was involved in many incidents in the first few weeks of her confinement at the premises. Sally came under attention for being disruptive, attacking carers, engaging in self harm and pretending to require medical attention. Examples of these incidents will suffice to indicate their general character. 12 From mid-July there was a series of incidents which showed Sally's continued destructiveness in relation to property and her continuing propensity to engage unpredictably in violent episodes of self harm. 13 These incidents which had already occurred by the time of the 18 August 2009 hearing suggested to the Court that there was obviously still some danger at the premises from Sally being able to access objects from which she could harm herself. As Sally was being confined to the premises by the Court's orders it is important that her confinement be made as safe as possible. Further safety checks were done on the premises as a result of the Court raising this issue. The evidence is that the premises cannot be made perfectly safe and that complete safety is only possible in a dedicated psychiatric facility. The evidence shows that the staff at the premises are maintaining a high level of vigilance in relation to Sally's obvious creativity in finding objects to harm herself. 14 This account of the period shows a disturbing level of aggression. At the time of September and October reviews this aggression appeared to have subsided somewhat. The evidence in relation to Sally's medication and therapeutic support, education and family contact up to the hearing of 18 August 2009 is somewhat simpler. Medication and Therapeutic Support 15 Apart from providing the capability to stop Sally harming herself, an important reason for having Sally at the premises was for her to commence therapeutic treatment with a community services psychologist ("the psychologist"). He has met Sally regularly since she entered the premises. He sees her usually weekly. I had the benefit of a detailed report from the psychologist at the hearing on 18 August 2009. His report will be discussed below. 16 Once Sally commenced at the premises it was planned to review her medication once fortnightly in consultation with a childhood adolescent psychiatrist attached to aHospital. By the time of the first Court review no change to Sally's medication had taken place. 17 In the hearing on 18 August 2009 the Court had the benefit of a report from the treating psychiatrist ("the psychiatrist"). Conscious that he had only seen Sally for the first time in July 2009, the psychiatrist counselled that his report should be read in conjunction with the earlier reports of her prior medical practitioners. On the question of Sally's continued need for care in the environment of the premises he said: "I would opine that [Sally] continue in an institutional setting and undergo therapy with a qualified psychologist and continue current medication. Involvement of her mother would be an important component of therapy". 18 Sally has been seen by a dietician at the premises. She is on the same diet plan that has been prescribed for other residents at the premises. The dietician attached to the premises is continuing to monitor Sally's progress and growth. 19 Sally was assessed by a clinical neuropsychologist, in a number of sessions shortly before Sally's arrival at the premises. The neuropsychologist's findings were consistent with the evidence which was previously available to the Court. The neuropsychologist reviewed Sally's cognitive development in the context of her early exposure to trauma and neglect. The neuropsychologist commenced her assessment of Sally when Sally was an in-patient of an adolescent mental health unit. The neuropsychologist overall impressions of Sally as she, the neuropsychologist described them were:- "[Sally] presents with many cognitive skills in the Low Average to Average ranges. Specific difficulties were noted in impulse control and self regulation. These findings were consistent with findings provided by a previous placement provider and mental health nursing staff". 20 The neuropsychologist's recommendations at the 18 August 2009 hearing confirmed the advantages of Sally remaining in a structured environment such as the premises. The neuropsychologist's first recommendation was to "provide [Sally] with structure in everyday situations". A number of specific recommendations made by the neuropsychologist such as a structured reward system, assisting Sally to become aware of the consequences of her actions on herself and others, and allowing Sally to keep track of her achievements and goals have been included in her management plan at the premises. Family Contact 21 The treating psychologist had recommended that Sally see her mother as an important component of Sally's therapy. Sally saw her mother at the premises on 29 July 2009. The evidence was that the visit itself was reported to go well. However the manager client services thought a series of critical incidents that Sally experienced commencing about 5 July 2009 were linked to staff preparing Sally for contact with her mother and discussion with Sally about this proposed contact. The manager client services believes that Sally's behaviour may be linked with Sally's grief and loss issues with her mother. 22 The change to the premises has improved the prospects for Sally's relationship with her mother. In the past re-engaging with her mother often led Sally into incidents, leading to temporary detention or a hospital admission. As a result no contact would take place with her mother for a while. In contrast at the premises, despite incidents occurring in early July, it was planned that contact would continue to take place between mother and daughter. At the hearing on 18 August 2009 the evidence was of a plan for Sally to have fortnightly contact with her mother at the premises. Education 23 When Sally went to the premises she was expected to participate in an educational program every school day for 5 hours. Up to the time of the 18 August 2009 hearing Sally was only managing this educational program two hours per day. As with the other residents at the premises, Sally is involved in other daily household activities as part of her Living Skills program. For example she takes part in this program by cooking and preparing lunch and dinner as well as doing chores daily. Direct Observations by the manager client services 24 The manager client services observed a marked positive change in aspects of Sally's behaviour and appearance since her lodgement at the premises. By the time of the 18 August 2009 hearing, the manager client services had seen Sally on four occasions since the orders of 23 June 2009. Since then the manager client services has noted that: Sally had removed her facial piercings which were healing well; she was dressing in more feminine clothing; and she looked happier and had lost weight. Case Planning 25 A case plan was developed for Sally by the time of the August hearing and was tendered in evidence. I reviewed the case plan which addresses the allocation of responsibility for the various objectives to be achieved in relation to the issues faced by Sally. This case plan appears to be comprehensive in relation to Sally's circumstances. It is of a kind the Court contemplated when the orders of 23 June 2009 were made. The psychologist's Report 26 The psychologist provided an interim report on Sally on 10 August 2009. In this report he describes in some detail his initial assessment of Sally's "complex and chronic history of neglect, abuse, limitations in the development of attachment relationships and subsequent behavioural, social and interpersonal problems". 27 The psychologist has been seeing Sally on a regular basis since an initial session with her on 29 June 2009. He had five sessions with her between that date and the first Court review of Sally's situation at the hearing on 18 August 2009. These sessions continue. 28 The psychologist comes to his task with considerable professional and clinical experience. He is currently appointed as a psychologist to the Department of Community Services. He has a Master of Psychology (Clinical) from the University of New South Wales and a Doctor of Philosophy (Psychology) UNSW. He has extensive experience in the analysis and treatment of complex mental health presentations that may include significant attachment problems and challenging behaviours of high frequency and intensity. His recent experience is particularly apt for treating Sally. 29 The psychologist indicated that in therapeutic terms he thought benefit in treating Sally could be gained from identifying the cognitive and behavioural process that underly a broad range of targets for intervention which hold a good prospect for change. The appropriate targets for intervention in Sally he thought were the cognitive and emotional underpinnings of Sally's factitious responses, disruptive and aggressive behaviour, self harm, anxiety and depression. He has planned his therapeutic intervention in Sally's case to target the development of regulatory ability in the face of things represented by Sally to herself as aversive stimuli. While explaining the process in planning her treatment he gave a cautionary warning about his presumed prospects of success: "It is worthy of note that [Sally] is not, in therapeutic terms, being returned to a level of premorbid functioning. Instead, the current process is one of seeking to support her in learning new cognitive and behavioural processes. The challenge of this task cannot be underestimated.