ADCO Constructions Pty Ltd v Goudappel

Background

1. In 2006, HRM perpetrated three sexual assaults upon a neighbour in the presence of her five-year-old daughter. In 2008, he was found by a judge of the District Court to be unfit to plead and was referred to the Mental Health Review Tribunal (MHRT). In 2009, following a special hearing, Judge Murrell of the District Court made orders under s 24 of the Forensic Provisions Act referring HRM to the MHRT, and that he be detained in custody. He has been assessed as being at a moderate to high-risk of re-offending.
2. In August 2013, pursuant to s 47(1)(b) of the Forensic Provisions Act, the MHRT released HRM into the community subject to a strict and comprehensive set of conditions. Since 2013, extension orders under cl 10 of sch 1 to the Forensic Provisions Act have been made by the Supreme Court.
3. In August 2016, Campbell J ordered that HRM be subjected to a 12-month further extension order expiring on 23 August 2017: Attorney General of NSW v HRM [2016] NSWSC 1189.
4. On 16 July 2014, the current application for a guardianship order in respect of HRM came before the Tribunal (differently constituted) and was adjourned to a date to be fixed. At that time the application for a further extension orders under the Forensic Provisions Act was then pending in the Supreme Court.
5. At the hearing, it was submitted on behalf of the applicant that the Tribunal both had the power to make orders under the Guardianship Act and should do so without further adjourning the matter to await the decision of the Supreme Court. That submission was rejected by the Tribunal.
6. The primary reasons for the decision to adjourn the application were that the Tribunal considered that during the period HRM was subject to the provisions of orders made by the Supreme Court pursuant to the Forensic Provisions Act, it doubted that the Tribunal had jurisdiction to entertain the application and that it was more appropriate to deal with the application once the Supreme Court had decided whether or not to make a further extension order under the Forensic Provisions Act.
7. In particular, the Tribunal stated in its reasons that "It is questionable whether a guardianship order made for the primary purpose of seeking to ensure compliance with the conditions of a forensic order would be consistent with s 4 of the Guardianship Act". In coming to that conclusion, the Tribunal referred to, and relied upon, a previous decision of this Tribunal in ERC [2015] NSWCATGD 14.
8. The matter returned to NCAT in September 2016 for determination of the application for orders under the Guardianship Act. At that hearing, further submissions were made about whether NCAT has power to make guardianship orders in respect of a forensic patient.

The question of jurisdiction

1. With some diffidence, we respectfully disagree with the conclusion reached by the Tribunal when adjourning the matter on 16 July 2016. We acknowledge that there may be sound pragmatic reasons for adjourning an application for guardianship orders pending the Supreme Court's determination of an application for the extension of HRM's status as a forensic patient.
2. On the other hand, we see no material inconsistency between the general principles to be applied under the Guardianship Act and the objects of the Forensic Provisions Act that prevents or, in an appropriate case, should prevent this Tribunal making guardianship orders in respect of persons subject to orders under the latter Act.
3. Neither the Guardianship Act, the Forensic Provisions Act, nor the Mental Health Act 2007 (NSW) expressly state that a person cannot be simultaneously subject to orders made under each of these statutes.
4. In fact, there appears to us to be such considerable overlap of those principles and objects that we are unable to see any objection in general principle to compatibility or complementarity of orders that may be made under these Acts.
5. While s 3C of the Guardianship Act expressly states that a guardianship order can be made in respect of a "patient" as that term is defined by the Mental Health Act, with one exception, the Guardianship Act makes no reference to the relationship between it and the Forensic Provisions Act. Contained in Part 5 of the Guardianship Act, which is headed "Medical and Dental Treatment", that exception is s 34 of the Guardianship Act which states: 34 Application of Part (1) This Part applies to a patient: (a) who is of or above the age of 16 years, and (b) who is incapable of giving consent to the carrying out of medical or dental treatment. (2) In the event of an inconsistency between the provisions of this Part and the provisions of the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, the provisions of the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990 prevail. [Emphasis added.]
6. The Forensic Provisions Act makes no such reference to the Guardianship Act.
7. Section 40 of the Forensic Provisions Act outlines the objects of that Act in relation to forensic patients as follows: 40 Objects … (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care.
8. Pursuant to s4 of the Guardianship Act, persons exercising powers or functions are required to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration; 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible; 3. such persons should be encouraged, as far as possible, to live a normal life in the community; 4. the views of such persons in relation to the exercise of those functions should be taken into consideration; 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised; 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs; 7. such persons should be protected from neglect, abuse and exploitation; 8. the community should be encouraged to apply and promote these principles.
9. The primary purpose of the Forensic Provisions Act is self-evidently the protection of the community. But, as the objects of the Act make clear, that purpose is not incompatible with the provision of care and other measures intended to benefit and protect forensic patients. Since the 1980s at least, when the mental health system was radically reformed in NSW to provide for community treatment of persons with mental illness, it has generally been recognised that institutionalisation of mentally ill persons is counter-therapeutic. Hence, even in relation to forensic patients - persons who have been found to have committed acts seriously harmful to others and who, due to their mental illnesses remain a threat to the community - provision has been made for community therapy in appropriate circumstances. Depending on the circumstances, the interests of the community and the individual forensic patient are not necessarily in competition but may align.
10. In coming to this view, we have applied a number of relevant principles of statutory interpretation. First, the purpose and context of a statutory provision must be considered in the first instance and that "context" is to be construed in the widest sense to include the remedy that the legislature intended for whatever problems or issues it was addressing: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at [408].
11. It is evident that the primary purpose of the Forensic Provisions Act is the protection of the community but not to the exclusion of the interests of the forensic patient to whom appropriate care and treatment must be given.
12. Second, beneficial legislation must be interpreted beneficially and liberally. This is not to say that there are no limits to such an interpretation. As the High Court said in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, at [29]: It can be accepted, as was put by counsel for Mr Goudappel, that the [Workers Compensation] Act's remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.
13. Nevertheless, in our view, to interpret the objects of the Forensic Provisions Act and the general principles of the Guardianship Act as being inconsistent on the basis of the two Acts having different protective purposes is an unduly restrictive approach. Both Acts are remedial and therefore, where reasonably possible, should be interpreted liberally.
14. Third, it is a general rule that state legislation is intended to stand together and that every reasonable effort should be made to reconcile apparently competing statutes. In Butler v Attorney General (Victoria) [1961] HCA 32; (1961) 106 CLR 268, at [276], Fullagar J said: [W]here the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other.
15. This, we think, is the appropriate approach in relation to the relationship of the two statutory provisions we are dealing with in this case.
16. In practical terms, if a person is subject to forensic orders made by the Supreme Court, the Tribunal cannot override them. Therefore, if this Tribunal were to make a guardianship order, the Supreme Court's orders will set the parameters within which guardianship orders must be made. With that limitation, there is no necessary inconsistency between the two statutes.
17. It appears to us to be self-evident that it is in HRM's best interests that he be cared for and treated in the community. To put it another way, it is difficult to see how his interests would be advanced were he to be returned to involuntary custody as a forensic patient. If the public interest in the protection of the community can be met and reconciled with HRM's own interests in being placed at conditional liberty within the community, we do not see a competition of interests but a convergence of interests.
18. While giving primacy to the protection of the community, this has been recognised and effectively acknowledged in the way the MHRT and the Supreme Court have approached their respective tasks under the Forensic Provisions Act. In Attorney General of NSW v HRM, although he did not specifically decide the issue, Campbell J appears to have accepted the appropriateness of a liberally beneficial approach to this question. His Honour commented: 19 A matter which is of particular significance to the question of whether an order should be made in this case is that there is a substantial body of opinion which suggests that the same result in terms of managing the risk HRM poses to public safety could be achieved by less restrictive means (cl 2 (1)(b) of schedule 1). That is to say that a combination of supports, including relevant orders under the Guardianship Act 1987 (NSW), the availability of community treatment orders when necessary, and ongoing support by the current service providers, the CJP, could achieve the same result. For instance, the appointment of the Public Guardian could ensure that HRM continued with the medication treatment he is currently receiving. Likewise, appropriate decisions about accommodation could be made by the Public Guardian and, on the assumption that he continues to reside in the greater metropolitan area, the 25 hours of support he is currently receiving from the Community Justice Project could continue. Indeed, to a greater or lesser extent, [Dr Y], [Professor W] and [Dr X] are attracted to that option in the longer term as a means of managing HRM's condition and the risk that he presents to the community. 20 It is notable that this has been a recurrent theme in the various applications made to this Court over the last few years, and perhaps is a reason why judges of the Court have been persuaded that an order of 12 months duration, a relative short period in this area of discourse, is the appropriate order to make. … 23 The second thing is that from the reasons of the Guardianship Division, it does seem that the learned members of NCAT have hesitation about making orders in a case where the Supreme Court has made orders under schedule 1 of the Act and the person is subject to ongoing supervision by the Mental Health Review Tribunal. Whether or not that is a correct view of the availability, or utility, of guardianship orders, of course, is a matter which in the first instance will fall for decision by NCAT. 24 However, it does seem to me that the difficulty in this case - approaching the level of catch-22 - is that given the virtually unanimous opinion of the experts that HRM does need help and support to manage the risk that he does present to the community, this Court cannot be satisfied in the absence of an alternative less restrictive regime already in place that the application at hand should be dismissed. It seems to me that HRM does present an unacceptable risk to community safety. The risk is unacceptable not because it is a high risk and not because it is likely to occur. … 28 It would be unfortunate if in considering the adjourned application, NCAT thought there was some kind of forensic demarcation between its legitimate sphere of operation and the Supreme Court's jurisdiction. It seems to me that there is a need in this case, I will comment, for a transition. But I stress, that the exercise of its powers is a matter for NCAT and not for me when disposing of this application.
19. For all these reasons, therefore, we are satisfied that it is open in principle for this Tribunal to make guardianship orders in respect of forensic patients.

Is HRM a "person in need of a guardian"?

1. A guardianship order can only be made if HRM is a "person in need of a guardian".
2. The Guardianship Act defines a person in need of a guardian to mean "a person who because of a disability is totally or partially incapable of managing his or her person": s3(1) of the Act. A person with a disability is defined to include a person who is intellectually and/or psychologically disabled and by virtue of that fact restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
3. The term "social habilitation" is not defined by the Guardianship Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [300]: The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.
4. In 2010, one of NCAT's predecessor tribunals, the NSW Guardianship Tribunal, made guardianship orders in respect of HRM (the 2010 Order). In its reasons for that decision, the Tribunal referred to a report prepared by psychiatrist Dr Z who was of the opinion that HRM had an intellectual disability and "functioned in the extremely low range". Dr Z wrote that as a result, HRM had "diminished decision-making capacity".
5. Tendered in these proceedings were a number of reports prepared by psychologists and psychiatrists who had recently assessed HRM for the purpose of the proceedings before the Supreme Court in relation to the making of further extension order.
6. All of the experts whose opinions are before us agree that HRM has an extremely low IQ, functions well below his chronological age in all domains and has impaired decision-making capacity. (See for example, the reports prepared by forensic psychiatrist, Dr Y, 12 May 2016 and 18 May 2016; report prepared by forensic psychiatrist, Dr X, 10 July 2016; report prepared by forensic psychologist, Professor W, 11 July 2016.)
7. In addition, the consensus of medical opinion is that HRM has an Alcohol Use Disorder which is apparently in "early remission". While he has been assessed at various times as having a personality disorder, Dr Y believes there is insufficient evidence to support that diagnosis. Dr X thought it "most likely" that HRM had at least a delusional disorder, persecutory type. In a report dated 10 July 2016, she recorded that HRM's treating psychiatrist, Dr V, informed her that in his opinion HRM had a psychotic disorder.
8. There is no evidence to suggest that there has been any material change in HRM's conditions since the 2010 Order was made. The weight of recent medical opinion confirms that HRM has a moderate intellectual disability and as a consequence, is at least partially incapable of managing his person. While there is a diversity of medical opinion, the weight of opinion is that HRM also has some form of delusional disorder. However, the evidence is insufficient to support a conclusion that as a result of that disorder, he is partially incapable of managing his person.
9. We are, however, satisfied that because of an intellectual disability, HRM is a person who "has a disability" for the purpose of the Guardianship Act.
10. The focus of each of the medical opinions before us is on HRM's risk of recidivism. Nonetheless, each also addressed whether HRM requires support and services to moderate the risk and to enable him to live in the community. The consensus of expert opinion is that HRM will require significant services to be able to function in the community. We are satisfied that HRM is a person in need of a guardian.

Should a guardianship order be made?

1. In considering whether or not to make a guardianship order we must have regard to the matters listed in s14(2) of the Guardianship Act. 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.

The views of HRM

1. HRM opposes the making of a guardianship order.

Views of any spouse and carer

1. Section 14(2)(a)(ii) of the Guardianship Act requires us to have regard to the views of any spouse, if the relationship between HRM and the spouse is "close and continuing".
2. HRM has a daughter who is now in her early twenties. HRM apparently lived with his daughter and her mother for a couple of years in the 1990s. There is no evidence to suggest that his former partner is a spouse for the purpose of the Act or that the relationship between the two is "close and continuing". Accordingly, we are not required to have regard to her views, which in any event are unknown.
3. There is no person who "has the care of" HRM as that term is defined in the Guardianship Act. Nor is there any evidence to suggest that he was in the care of another before being detained in 2008.

The practicality of services being provided to HRM without the need for making an order

1. The weight of expert opinion is that on account of limited insight and poor problem-solving skills, HRM lacks the capacity to recognise the need for services, or to make decision about services.
2. His answers in these proceedings to our questions about how, for example, he would go about obtaining accommodation if he were no longer subject to an extension order, were consistent with the expert opinion. Many of his answers were simply unresponsive.
3. HRM was unclear what, if any, services might be available to him if he were no longer a forensic patient. Perhaps more significantly, he was at a loss to explain how he would go about identifying and applying for services that might be available. In respect of healthcare, he said he didn't need any medical treatment and proclaimed "if it were up to me I would never have a blood test".
4. HRM does not have the advantage of support of friends or family members. Apparently the only member of his family with whom HRM is in contact is his sister. The contact is apparently irregular and the available evidence does not suggest she is willing or able to provide support to HRM.
5. In our view it would be impracticable for services to be provided to HRM without a guardianship order.

Views of the applicant

1. In a report dated 24 May 2010 addressed to NCAT, MZI, the original applicant, recommended that the Public Guardian be appointed to make decisions about accommodation, healthcare, services, and to consent to medical and dental treatment, on behalf of HRM. In her opinion, such appointment was necessary because of HRM's impaired decision-making capacity.
2. MZI wrote that HRM has generally been compliant with the conditions imposed by the MHRT. However, she pointed out that between 9 January 2016 and 8 April 2016, he was detained in Nepean Hospital for being in breach of those conditions, namely being absent from his nominated place of accommodation and failing to attend scheduled appointments with his treating psychiatrist.
3. In MZI's opinion, HRM has demonstrated "poor capacity to make decisions about medical treatment and presents as intimidated by and reluctant to speak to medical practitioners". She pointed to his reluctance to consent to take the anti-libidinal medication, Androcur, as an example of his inability to make "sound and informed decisions" about medical treatment.
4. MZI reported that HRM currently receives support services from CJP and a service provider, New Horizon, and currently receives weekly staff support totalling 25 hours to assist with transport, shopping, attending appointments, connecting with his sister, and improving literacy skills.
5. MZI reported that, prior to being detained, HRM lived an itinerant lifestyle and had periods of homelessness which, in her opinion, suggested impaired decision-making capacity. She noted that his current accommodation was arranged by a service provider.

Submissions by the separate representative

1. Mr Massey urged the Tribunal to make a guardianship order, contending it was in HRM best interest that such order be made.
2. In support he pointed to the comments made by Campbell J in discussing whether a less restrictive regime might be available (at [19]-[20]).
3. Mr Massey also referred to the comments made by Campbell J (at [24]) where he stated that a guardianship order was necessary to avoid the Catch-22 situation created by the absence of a substitute decision-maker for HRM: However, it does seem to me that the difficulty in this case - approaching the level of catch-22 - is that given the virtually unanimous opinion of the experts that HRM does need help and support to manage the risk that he does present to the community, this Court cannot be satisfied in the absence of an alternative less restrictive regime already in place that the application at hand should be dismissed. It seems to me that HRM does present an unacceptable risk to community safety. The risk is unacceptable not because it is a high risk and not because it is likely to occur.

Submissions by Mr UQE

1. In a statement prepared for these proceedings, solicitor Mr UQE addressed the issue of whether a guardianship order can and should be made in respect of HRM. Mr UQE is a member of the Legal Aid NSW's Mental Health Advocacy Service and has been instructed by HRM in respect of his continued status as a forensic patient and in ongoing reviews before the MHRT.
2. In support of his submission that a guardianship order should be made, Mr UQE advanced two main arguments. First, he agreed with the argument made by Mr Massey that it was manifestly in HRM's interest that he be subject to "the less restrictive regime" referred to by Campbell J. He pointed to comments made by His Honour that HRM's transition from his status as forensic patient is most likely to occur in circumstances where HRM is subject to an "alternative mechanism" such as guardianship.
3. Second, he asserted that while the MHRT may make orders that determine a person's liberty and autonomy and determine, for example, where a forensic patient will live and the medical treatment they will receive, it cannot direct a service provider to provide particular services or consent to the provision of services on behalf of the forensic patient. He asserted that there is a need for a decision maker to consent to the provision of services on behalf of a forensic patient and, within the parameters of the orders made by the MRHT, make decisions about services, accommodation, and the like.

Findings and conclusions

1. In deciding whether to exercise the power to make a guardianship order, we must take into account the statement of principles contained in s 4 of the Guardianship Act, which requires us, to balance a number of competing factors. On the one hand, in making our decision, we must observe the principle that HRM must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict his freedom of decision making and action as little as possible and encourage him as far as possible to live a normal life in the community. The paramount consideration at all times is HRM's welfare and interests.
2. Were it not for his status as a forensic patient, we would have no hesitation in exercising the power to make a guardianship order. The weight of expert evidence is that, on account of an intellectual disability, HRM lacks the capacity to make decisions of any significance concerning the management of his person. Coupled with a demonstrable need for significant support and services and the lack of any informal support system, favours the making of a guardianship order.
3. However, the issue arises as to whether there is any utility in making a guardianship order in circumstances where HRM remains a forensic patient. We note that there is considerable overlap between the functions commonly conferred by the Guardianship Division of NCAT on a guardian - for instance, accommodation, healthcare, services - and s75 of the Forensic Provisions Act, which gives the MHRT broad powers to impose conditions on forensic patients.
4. While, generally, the Tribunal does not exercise its power to make a guardianship order in circumstances where there is no apparent need for such order, the Guardianship Act does not stipulate that need, or immediate need, be established before an order can be made. The power to make a guardianship order is fettered only by ss 4 and 14 of the Guardianship Act.
5. While it is not possible to predict what decision will be made by the Court at the expiration of the current order, there is a possibility that a further extension order will not be made. That possibility could not be described as fanciful or far-fetched. If that occurs, there will be a demonstrable need for a substitute decision-maker to make decisions on behalf of HRM in the areas of accommodation, services, and healthcare. In anticipation of that possibility, there will be a need for a number of preliminary decisions to be made, such as assessing the suitability of appropriate service providers. Unless a substitute decision-maker has been appointed to make such decisions before the current extension order expires, there is a real risk that the Catch-22 situation referred to by Campbell J may continue indefinitely.
6. In addition, it would appear that even while he remains a forensic patient, there will be a number of residual areas where a guardian may need to make decisions on behalf of HRM, subject, of course, to any conditions imposed by the MHRT. These might include, for instance, healthcare decisions unrelated to HRM's risk of re-offending.
7. Whether HRM will pose an unacceptable risk to the community if subject to a guardianship order, is a matter for the Supreme Court not NCAT.
8. For these reasons we have concluded that the balance of considerations favour the making of a guardianship order.

Who should be the guardian and what functions should be conferred?

1. The Tribunal cannot make a continuing guardianship order appointing the Public Guardian as the guardian of HRM in circumstances where such an order can be made appointing some other person as his guardian: s15(3) Guardianship Act.
2. The Tribunal must not appoint a person as guardian unless satisfied the proposed guardian is, among other things, willing and able to exercise the functions conferred or imposed by the proposed guardianship order: s17(3) Guardianship Act.
3. In the first two years HRM was the subject of a guardianship order, his sister acted as his guardian. She relinquished that appointment in December 2012 apparently because she believed she did not have the time on account of parental responsibilities. She did not attend this hearing nor notify the Tribunal that she was willing to resume the appointment. In the absence of any evidence of a private individual who is willing to be appointed as HRM's guardian, we have no option but to appoint the Public Guardian.

Application for consent to "special treatment"

1. At the adjourned hearing, the Tribunal decided it was unable to determine the application for special treatment because it had not been provided with information about those matters that need to be addressed before the power to consent to "special treatment" could be exercised. The Tribunal pointed to the absence of material about the proposed medication dosage, details of possible side effects, and any alternative treatments (Reasons for Decision, 13 July 2016).
2. At the hearing, the applicant conceded that those evidentiary shortcomings had not been addressed and decided to withdraw the application. We consented to that application and made orders dismissing that application under sch 6, cl 10, and s 55(1)(a), of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 13 March 2017 - "Date of Orders" and "Decision Date" amended from "19 September 2016" to "29 November 2016". 13 March 2017 - Pursuant to s 63(1) of the Civil and Administrative Tribunal Act 2013, the reasons for decision in HRM [2016] NSWCATGD 30 is altered by deleting from the "Date of Orders" and "Decision Date" the date "19 September 2016" and in substitution, inserting "29 November 2016". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2017