Director-General, Department of Human Services; Re Thomas2 [2011] NSWSC 173

Supreme Court New South Wales

Medium Neutral Citation: Director-General, Department of Human Services; Re Thomas2 [2011] NSWSC 173 Hearing dates: 23 February 2011 Decision date: 23 February 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Proceedings adjourned, Director-General to prepare report on progress of child. Catchwords: CHILDREN - parens patriae jurisdiction - child approaching age of 18 - application to Guardianship Tribunal made - child progressing well in secure accommodation - whether court should pronounce view as to appropriateness of a secure or coercive accommodation and/or restraint order in anticipation of Guardianship Tribunal determination - not appropriate for court to pronounce such a view. Category: Principal judgment Parties: Director-General, Department of Human Services Minister for Community Services "Thomas" Representation: Counsel: Mr G Moore (Department of Human Services) Ms K Reynolds (independent legal representative for child) Solicitors: IV Knight, Crown Solicitor (Dept of Human Services) Leonie Miller ("Thomas") File Number(s): 2010/410307

Judgment ( Ex Tempore ) 1HIS HONOUR: Since the secure accommodation order in respect of Thomas was reinstated on 9 December 2010 there have been changes in the management of the premises then known and described in the order of that date as Sylvanvale, which are now managed by the Metropolitan Intensive Support Services Team in conjunction with Sherwood House, and are now known as Sherwood Cottage. 2Under these arrangements, Thomas appears to be progressing well. Between 22 December 2010 and 23 January 2011, Thomas had a total of thirteen incidents requiring PRN on eight occasions and restraint on three occasions. Ms Carroll's affidavit of 14 February 2011 deposes that he had not had an incident since 23 January, although the Court was informed this morning that he had had two minor incidents during February. 3Thomas will attain eighteen years of age on 27 March this year. It is at least doubtful whether this Court's parental jurisdiction extends beyond that date, although it is arguable that in some circumstances it may. An application has been made to the Guardianship Tribunal for the appointment of a public guardian for Thomas, which is to be heard on 25 March 2011. The Guardianship Tribunal can appoint a guardian if the person of concern is over sixteen years of age, usually resides in New South Wales, has a disability that impairs their decision-making, and a decision needs to be made and cannot be made informally. Community Services proposes to seek from the Guardianship Tribunal, as guardianship functions in respect of Thomas: a coercive accommodation function giving authority to keep and contain Thomas at his residence, as well as to authorise the public guardian to request police or ambulance services to return Thomas to his residence; a restrictive practices function for the authorisation of his behaviour intervention support plan, including restraint; a services function which would give authority to the public guardian to consent to Thomas' referral to appropriate services; the functions of medical and dental consent; and the function of access, authorising the public guardian to assist Thomas in his interactions with his family and, where necessary, to place restrictions or supervision in respect of contact where risks are identified. 4Such orders, if made by the Guardianship Tribunal, would supersede the orders of this Court and remove the necessity of deciding whether this Court retains jurisdiction after Thomas attains eighteen years of age. 5So far as Thomas' long-term accommodation is concerned, Sherwood Cottage is a rented premises, and the lease will expire in a few months time. The Court has been informed that there is some anticipation that it may be possible to renew the lease. In any event, the evidence discloses that a long-term accommodation plan for Thomas is the subject of a special project within the Department of Human Services - involving Community Services and Aging, Disability and Home Care ('ADHC') - which will address the needs of a small group of young people with complex needs, who are exiting care and transitioning to ADHC, of which Thomas is one. Three meetings of senior staff have so far been held - in December 2010, and January and early February 2011 - to progress that project. Future meetings will involve Thomas' guardian, if one is appointed. This indicates that planning for Thomas' long-term accommodation is in hand and will not fall between the cracks as he transitions from Community Services to ADHC. 6Although I have been asked to express a view in respect of whether orders making a provision for secure or coercive accommodation and restraint remain appropriate, in circumstances where such applications are to be made to the Guardianship Tribunal, I think it should be left to make its own judgment on the evidence that will be put before it, rather than be influenced by such views as might be expressed by this Court. The question is not necessarily an easy one. On the one hand, the practical absence of incidents over the last month is very promising. On the other, Dr Jairam has recommended that a level of containment may need to be continued, until Thomas is able to engage in developmentally appropriate behaviours in the community with minimal or no supervision; also when such orders were dissolved previously in conjunction with Thomas' move to Sylvanvale, the position deteriorated during the transition period such that the orders subsequently had to be reinstated. At this stage, I think that this difficult judgment should be left to the Guardianship Tribunal, unburdened by my views on the question. 7The date of the hearing before the Guardianship Tribunal is the last business day before Thomas' 18th birthday. The Director-General proposes that these proceedings be adjourned to the day following his birthday, Monday 28 March, on the basis that the extant orders will remain in place in the meantime. That is probably the best that can be done in the circumstances. 8I adjourn the proceedings to 28 March 2011 at 9.30am before me for mention. I direct that the Director-General lodge with my Associate and serve by close of business on 25 March 2011, an updating report outlining progress in respect of Thomas to that date, including the outcome of the Guardianship Tribunal proceedings and long-term accommodation planning.