1 AC 458[1998] 3 All ER 289
State of South Australia v Lampard-Trevorrow [2010] SASC 56117 CLR 118
XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12
Judgment (10 paragraphs)
[1]
Judgment
1ALLSOP P : I have read the reasons of Whealy JA. I agree with his Honour's analysis of the facts and with his Honour's reasoning. I would only add the following comments, which I do not intend to be a derogation from that agreement.
2The question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law. In this case, the liberty of Ms Darcy was intimately bound up with the responsibility in others to have due regard for her health, including her personal development as an adult, and, most importantly, her safety. Also relevant, but not so intimately concerned with her freedom and human rights, was the safety of others. That was relevant because it could affect her own safety. She was prone to irrational conduct and violence. That could see her hurt in retaliation; it could see her incarcerated in prison. If that were to occur it could be safely assumed that whatever the deficiencies of Kanangra, they would not compare to the risks she would face in prison.
3Lawful justification often comes from consent as an exercise of human free will. Here, the public guardian had the lawful authority to decide where Ms Darcy lived. Those facts do not create a simple logical and linguistic framework that for there to be lawful justification the public guardian must say "I consent" to Ms Darcy being at Kanangra; nor does the expression of words that the public guardian does "not consent" provide the answer that there was no justification. Ms Darcy resided at Kanangra. What the public guardian plainly did not consent to was her remaining at Kanangra on a permanent placement basis. This was because of its relative unsuitability. I say "relative" because the conditions at Kanangra were not appropriate in comparison to what could (and in the public guardian's view, should) be made available in supervised community residential accommodation, assuming the availability of funds and assuming the making of a decision to allocate such funds to meeting Ms Darcy's needs. It may have been inappropriate in that sense; it was obvious, and assumed (indubitably correctly) by all concerned (at the public guardian and DoCs) that it was preferable to leaving Ms Darcy to her own devices unsupervised in the community and to the risk of prison.
4It was accepted in argument that if the public guardian in fact agreed to Ms Darcy living at Kanangra, there was no false imprisonment. It was not argued that because residence at Kanangra was imprisonment, the public guardian had no power or authority to agree to her being a resident there.
5It is relevant to appreciate that at no time did the public guardian require or demand the release of Ms Darcy from Kanangra. To demand such was within its legal power. It did not do so because (as was too obvious for the need for any particular identifiable decision) such would have been profoundly contrary to Ms Darcy's interests. Rather, whilst wanting to put pressure on DoCs by saying that it had not consented to Ms Darcy remaining at Kanangra, it acquiesced and agreed that, until the Department provided better services, Ms Darcy should remain at Kanangra.
6DoCs did not hold Ms D'Arcy at Kanangra against the will or contrary to the direction of the public guardian. It held Ms Darcy pursuant to the reluctant, but real, agreement and acquiescence of the public guardian, being the authority having legal power to decide upon accommodation for Ms Darcy.
7This Court is not in a position even to commence to judge the legitimacy of any decision as to resource allocation that was the subject of much of the correspondence. On the evidence, all the people concerned at the public guardian and DoCs exercised their best efforts for the welfare of Ms Darcy. Beneficial intentions do not, of course, justify imprisonment. The police or other authorities have no power to sweep up people living rough and compulsorily house them for their own good, as perceived by the authorities. That is not, however, what happened here. The magistrate's order lawfully compelled Ms Darcy's attendance at Kanangra. Thereafter, the public guardian, as the authority capable of deciding on her behalf where she lived, acquiesced and agreed to her remaining at Kanangra but without, indeed expressly refusing, consent to her remaining there as a permanent placement.
8There was no false imprisonment.
9Costs should not be awarded against Ms Darcy or her tutor. This was an extraordinary case of real difficulty. The claim was not improperly brought. There was a public interest in the attempt to vindicate what were genuinely seen as Ms Darcy's rights. In all the circumstances, there should be no order as to costs.
10I also wish to express my appreciation to the careful reasons of the primary judge and the careful and helpful submissions with which the Court was favoured by counsel and solicitors from both sides.
11BEAZLEY JA: I have read in draft the reasons of Whealy JA and the additional comments of Allsop P.
12I am grateful for Whealy JA's careful and sensitive analysis of the facts and his detailed approach to the law. Notwithstanding the difficult personal circumstances in which the appellant was for many years, I agree with his Honour's conclusion that there was justification for the appellant's continued residence at Kanangra. I also agree with the additional thoughtful comments of Allsop P. Accordingly, I agree with the orders proposed by Whealy JA.
13WHEALY JA: Kanangra is a residential centre which accommodates and treats persons with intellectual or developmental disabilities. It is located in Morrisett, New South Wales and is adjacent to the Morrisett Hospital for Psychiatric Treatment. The appellant (Ms Darcy) was a resident at the Kanangra Centre from the 20 June 1996 to the 18 December 2002, a period of some six and a half years. Although she was well treated at Kanangra, and indeed matured considerably during the time of her residence, she was not happy there and expressed a wish to leave on many occasions. She was not, however, permitted to leave in the absence of suitable outside accommodation being available for her.
14Ms Darcy brought proceedings in the District Court of New South Wales claiming damages for wrongful imprisonment. On the 21 September 2010, his Honour Judge Peter Johnstone (the primary judge) found against her and entered a verdict for the respondent. There had been no dispute at trial that the respondent was liable to be sued in respect of Ms Darcy's claim. The claim was founded on the actions of the Department of Community Service (DoCS) which operated in Kanangra at the relevant time.
15The primary judge found that Ms Darcy had not been wrongfully imprisoned during her stay at Kanangra. In the event that he were wrong in this decision, he contingently assessed damages at $100,000 but indicated that he did not consider the matter an appropriate one for the award of aggravated or exemplary damages.
16In this appeal, Ms Darcy relies on grounds of appeal which raise the following critical issues:-
(a) Whether Ms Darcy, either throughout the entire period she spent at Kanangra, or for some part of that period, was detained there against her will.
(b) If Ms Darcy were so detained, whether her initial residence at Kanangra after her admission on the 20 June 1996 (or her later residence there) was justified in law by the orders made by the local court magistrate of Port Macquarie pursuit to section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
(c) If her residence at Kanangra constituted detention, whether such detention was consented to on her behalf by the Public Guardian, or otherwise sanctioned.
(d) Whether the Public Guardian was prohibited under the Guardianship Orders relating to Ms Darcy from so consenting.
(e) Whether there is a common law defence of necessity to a claim of false imprisonment and, if so, whether it applies to the circumstances of this case.
(f) Whether the primary judge was correct in ruling that this was not an appropriate case for the award of aggravated or exemplarily damages. In that regard, the quantum of damages generally was in issue.
(In relation to the issue arising under (d) this turn upon the interpretation to be given to a condition imposed by the Guardianship Board in appointing the Public Guardian to be Ms Darcy's guardian. However, Dr Birch SC conceded on the appeal that, if the Public Guardian had agreed to his client residing at Kanangra, this point would not be pursued.)
17In order to understand how these critical issues arise and to understand how they may be resolved, it is necessary to spell out with some precise detail the factual circumstances relating to the appellant's general situation and her stay at Kanangra. I will turn to detail these matters at this stage.
[2]
The facts and evidence at trial
18Ms Darcy was born 27 May 1977. She was 19 years old when she went to Kanangra and 25 years old when she left. By the time her trial came on for hearing, she was 33 years of age. At all relevant times, she suffered from an intellectual disability, a borderline personality disorder and epilepsy. The personality disorder was accompanied by a tendency to show violent behaviour towards other people. In addition, she was not capable of managing her affairs, and was partially incapable of managing her own person.
19When Ms Darcy was a young child, her mother was unable to look after her. She was simply too difficult to handle. She first came to the attention of DoCS at the age of 8 when she was made a Ward of the State and placed into care. For the next 5 years, until she turned 13, she was accommodated by DoCS at various locations, including in Katoomba and Sydney, and then in a group home in Port Macquarie. When that group home was closed in 1993, Ms Darcy returned to live with her mother, and ceased to be a Ward of the State.
20Ms Darcy then lived with her mother for a period. One of the consequences of the appellant's disabilities was that she had less social skill than other people her age and she was prone to deal with difficult or tense situations by outbursts of violence, during which she was physically difficult to control. During this period, Ms Darcy received assistance for this, and her other developmental difficulties from carers provided by DoCS, who would attend and give her support. Her mother was also provided with weekly respite assistance.
21In January 1994, Ms Darcy commenced supported employment at the Hastings Foundation, a workshop for disabled people, but only attended there for a short period because of behavioural problems. Whilst at this Foundation, she met a man called Gary Holland, with whom she commenced a relationship. She was in consultation with psychiatrists in 1994. In 1995, when she was 17, Mr Holland moved in with her at her mother's house. However, her behavioural problems continued and indeed worsened. Eventually, her mother approached DoCS to request that alternative accommodation be found for her daughter. In June 1995, while Ms Darcy was still 17, she and Mr Holland moved out into a flat at Cliftonport Macquarie, where they lived together for a short period. His level of disability was less serious than hers, and he was more capable of looking after himself. When he was at work, support amounting to some 20 hours per week was provided to Ms Darcy by carers made available through DoCS.
22However, Ms Darcy's behavioural problems further deteriorated, and she saw a psychiatrist again in September 1995, following numerous episodes of "upsetting other people". This involved her going into the homes of neighbours, often uninvited, and at times she was verbally abusive to them. She was also involved in episodes with community workers when, for example, she would block the door to prevent them leaving. Apparently she could be quite threatening in this situation.
23After Christmas 1995, the appellant fell out with Mr Holland and moved out of their shared flat. Thereafter, she resided at a number of different locations. Further episodes occurred which brought her to the attention of the police and the criminal justice system. In early February 1996, she assaulted a staff member at a group home, and a few days later, she bit a police officer who was attempting to remove her from the group home after she had created a disturbance. As a result, her DoCS Case Manager, Alison Bate, took her to see a consultant psychiatrist in Chatswood on 8 February 1996.
24Ms Bate then prepared an application to the Guardianship Board for guardianship and financial management orders. By this time, Ms Darcy was being accommodated alone in a flat, and required 24-hour daily support from various sources, such as Hastings Respite Care and Adult Community Education Services.
25The hearing in relation to the application was held by the Guardianship Board at Port Macquarie on 28 March 1996. In its reasons for decision, the Board said (Red 28 - 31):-
14. ... The medical, psychological and psychiatric reports available to the Board indicate that Ms Darcy has a moderate developmental disability, along with epilepsy, which is controlled on medication, and behavioural disturbance. She also has some medical problems and has gained approximately 5 stone in weight over the past year.
The Board was, therefore, satisfied that Ms Darcy is a person with a disability which affects her capacity to manage her personal affairs. The Board was also satisfied that she is a person in need of a guardian.
This need arises largely because Ms Darcy's aggressive and sometimes violent behaviour has given rise to a number of problems in the provision of appropriate accommodation, support and health care.
Ms Darcy has been unable to stay in any one place of accommodation for any length of time since her mother, Ms Stringer, indicated that she could no longer cope with her at home. She was, at the time of the hearing, living alone in a flat. She was receiving approximately 20 hours support per day, provided by various services. It is likely that she will have to leave this accommodation however, following an incident in which she smashed a neighbour's window when her support worker failed to arrive...
The provision of adequate support services for Ms Darcy is a major problem for local service providers. She is currently in receipt of a package of services cobbled together with various local community and government agencies using funding from a variety of sources. Ms Darcy's behaviour has, in the past, led to the withdrawal of services and creates an on-going problem in finding staff who are willing to work with her. It has resulted in her having to be accommodated alone, thus increasing the cost of 24 hour supervision. Those present expressed their concern that funding must eventually run out.
Ms Darcy's behaviour has also resulted in criminal charges...
Ms Stringer told the Board that she would prefer not to be appointed as her daughter's guardian. The Board agreed that, given the complexities of the issues involved as well as the potential for conflict and stress, it was necessary to appoint the Public Guardian.
15. The Board made formal findings as following (Exhibit D8):
" Guardianship
Ms Joanne Darcy has an intellectual disability by virtue of which she is restricted in one or more major life activities to such an extent that she requires supervision and social habilitation. Consequently, she is a person who has a disability within the meaning of the Act.
By virtue of that fact, Ms Darcy is at least partially incapable of managing her person.
The circumstances of the case mean that it is necessary and appropriate that her property and affairs be subject to management under the Protected Estates Act 1983.
Financial Management
Ms Darcy is not capable of managing her affairs.
The circumstances of the case mean that it is necessary and appropriate that her property and affairs be subject to management under the Protected Estates Act 1983.
Management of the property and affairs of Ms Darcy should be committed to the Protective Commissioner."
The Board therefore made a Management Order under the Protected Estates Act 1983 and a Limited Guardianship Order under the Guardianship Act 1987 both dated 28 March 1996. The latter of these two orders placed [Ms Darcy] under the guardianship of the Public Guardian for a period of 12 months, with the following limited functions and subject to certain standard conditions (Exhibit D1 - 2):
"5. The guardian shall have the following functions in relation to Ms Joanne Darcy:
(a) Accommodation
To determine where Ms Joanne Darcy may reside.
(b) Health Care
To determine...health care and...treatment...
(c) Medical and Dental Consent
To consent on her behalf to medical and dental treatment...
(d) Services
To make decisions on her behalf concerning major services to which she should have access including, in particular, legal services, accommodation support services and leisure services."
"6. This order is subject to the following standard conditions :
(a) The guardian, in the exercise of the above powers and functions, shall take all reasonable steps to bring Ms Joanne Darcy to an understanding of the issues affecting her and shall obtain and take into consideration her views when significant decisions are made.
(b) The guardian may not introduce or authorise any form of restraint or confinement of Ms Joanne Darcy, nor any threat of such restraint or confinement."
Condition 6(b) is the condition to which I have made earlier reference in the context of Dr Birch's alternate concession).
26Finding appropriate accommodation for Ms Darcy following these events was problematical. This is evidenced from the Running Notes (Exhibit C) made by officers from the Office of the Public Guardian (OPG). As predicted by the Guardianship Board, the plaintiff was evicted by the Tenancy Tribunal from the premises in which she had been residing. The following extracts from the Running Notes indicate clearly the escalation in difficult behaviour leading to the Court hearing involving the various criminal charge brought by the Police against Ms Darcy for assault and malicious damage (Blue, 58-64):
16.04.96 "P/C from Alison Bate. Informed PG that Ms Darcy attended residential tenancy Tribunal this morning. Result is eviction from unit within t 4/52. Ms Bate wanted to know what other options there were. I restated PG's role, but suggested she look at respite placement maybe in Newcastle (Matfen Close) or Cooinda in New England Area. She suggested Kanangra. I stated this would not be a preferred option and to even PG to think of this she would need to show all other options have been tried and failed..."
23.04.96 "Meeting with Alison Bate...
In relation to future accommodation, Alison wished to pursue Kanangra... Mother does not wish to care for her... Respite Services in the area are home based and that nobody would accept her due to her reputation...
Recommended the following:
That before Kanangra would be considered, the following applications are to be made and results forwarded to the PG;
Home Based Respite
Private Accommodation with investigation into the possibility of Ms Darcy moving in with a friend
Respite non home based service statewide (Cooinda application to be made immediately)
Department of Housing
Boarding House - second last option
Kanangra - last option"
23.04.96 "Visit to Ms Darcy - Ms Darcy wished to reside in a house or a flat with another boarder. She wished this person to be "Mark Marki". She was willing to move out of the area (as far as Taree or Forster - but no further). Ms Darcy has no concept of Boarding Houses or Respites... Ms Darcy stated that she wished to find work as staying home all day was "boring"."
19.06.96 "T/C from Alison Bate regarding Ms Joanne Darcy.
Advised that Ms Darcy is in police custody, and is going to court this morning.
Yesterday, Ms Darcy moved into a Dept of Housing flat with a friend, supported by Hastings Accommodation Support. The placement did not even last a night before Ms Darcy had assaulted her flatmate, and attempted to assault her carer. Both the latter left the house, then tried to return later, but were not able to gain access as Ms Darcy had evidently barricaded herself in... Finally, the police were called, and Ms Darcy was taken into custody. Apparently there has been a court appearance every month this year, apart from May. Generally, AVO/Assault issues...
Current Issues:
Ms Bates advised that she did not have an alternative placement option for Ms Darcy, but that she couldn't return to the flat in view of the fact that she had assaulted the [sic] flatmate. I advised Ms Bates that it was her responsibility to secure alternative options, or the service's responsibility to find Ms Darcy an alternative, and that they needed to have a planned response to the situation...
Ms Bates believes that Ms Darcy is expressing her inability to cope with community living, since all placements to date had broken down, even when she had 24 hour support...
I reiterated the importance of finding feasible alternatives, including exploring all options, and not resorting to Kanangra, which was what Ms Bates proposed...
I advised that we would not consent to Kanangra unless other options had been fully explored..."
27It is clear that an impasse had been reached. The issue as to where Ms Darcy was to live was resolved, however, in the court proceedings in the Local Court at Port Macquarie on 20 June 1996.
28The situation is best described by reference to Exhibit A to the Affidavit of Mr Rogers (Exhibit 1, Blue, 282 - 286). This was a report prepared by Ian Mussatt, a manager with DoCS in the local area. Having referred to the assault by Ms Darcy on her flatmate on the evening of 8 June 1996, and her subsequent time in custody while awaiting the hearing of the charge, Mr Mussatt said (referring to the court hearing on 20 June 1996):-
The Magistrate, after discussion with Joanne's legal representative, myself, Alison Bate, community worker, and Debbie Ryan, coordinator, Hastings Accommodation Service, refused to release Joanne back into the community, citing the safety of the community, Joanne's welfare and the safety of her support staff as his reasons. He indicated a secure placement was necessary... we, in Port Macquarie, could offer no alternative accommodation, and I spoke with Leanne Durrington re a placement at Kanangra and she was negotiating with Lorraine Yudaeff, CEO at Stockton... I spoke to Lorraine on two occasions and although recognising her difficulties, indicated that the Magistrate was seeking a placement with Department of Community Services, in lieu of remanding her in Mulawa Prison.
29At the end of his report, Mr Mussatt concluded:-
Joanne cannot be managed in the community, even with 24 hour support. Her behaviour towards staff and others places them at risk of physical assault, threats, harassment and trespass. It is difficult to maintain behaviour management strategies, due to the high staff turnover and, as time goes by, the employment of less experienced staff. Joanne's behaviour in the community reduces the acceptance of the community to persons with intellectual disabilities.
A secure placement, such as a residential unit, would allow a more complete assessment of Joanne's medical and behavioural needs in a professional atmosphere. Group home placement is not considered appropriate, as experience has shown other residents and staff continue to be at risk of verbal and physical abuse...
30The Local Magistrate, Mr SV Jackson, made the following order:-
Dealt with section 32 Mental Health (Crimes) Act. Dismissed and discharged and order that the defendant attend at Kanangra Centre Morrisett Hospital.
31It is common ground that the Magistrate's Order was in fact a reference to section 32 of the Mental Health (Criminal Procedure) Act 1990 which provides:
(1) If, at the commencement or at any time during the course of
the hearing of proceedings before a Magistrate, it appears to the
Magistrate:
(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following.
(a) adjourn the proceedings;
(b) grant the defendant bail in accordance with the Bail Act 1978;
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may dismiss the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions; or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or
(c) unconditionally...
32Ms Darcy was taken that day to Kanangra at Morrisett. She was driven there by Alison Bate. On the way, Ms Darcy was taken to her mother's place where Ms Bate told the mother (Blue, 30):-
The judge in Joanne's case wants an assessment done on Joanne, so I am taking her to Kanangra for a 2 - 3 months assessment. The judge didn't know what her abilities were so he ordered an assessment. I am taking her there now and will let you know when I have dropped Joanne off there.
From the perspective of DoCS, the position is explained adequately by Mr Mussatt in his report. I have earlier referred to his suggestion that a secure placement in a residential unit would allow a better assessment of Ms Darcy's medical and behavioural needs. In his report, however, Mr Mussatt spoke of an "exit plan" in these terms (Blue, 245):-
Joanne be permitted to be placed at Kanangra for at least 3 months to enable:
A full assessment of Joanne's behaviour and medical regime
Behaviour management strategies to maintain Joanne in the community with safety to staff and other persons
To enable alternate accommodation to be located for Joanne which will meet her, and her neighbours' needs
The opportunity to provide specialist school training for staff to meet Joanne's challenging behaviours
To finalise a funding package for Joanne to meet her needs for 24 hour support.
33This report had endorsed on its final page the approval of Roxanne Ramsay, who was, at 20 January 1996, the acting Director-General of DoCS. The approval is in the following terms:-
Approved for 2 months commencing 20 June 1996. Placement contingent on appropriate vacancy in HRDSS. Port Macquarie CSS to be responsible for case management and ensuring movement back to community placement. Progress report to be provided to ADG by 20 July 1996.
34Ms Darcy was received at the Kanangra Centre on 20 July 1996. She was placed in Unit 3 during this initial period. Unit 3 was a "secure unit", in which all the external doors and gates were locked. I shall, at a later point, describe in more detail the facilities and layout of the Kanangra Centre. For the moment, I wish to focus on the initial treatment and assessment she received upon arrival.
35The relevant documents, are to be found at Blue, Vol 1, 76 - 78. They include a file which records details for Ms Darcy, including her principal diagnosis and a recitation of other conditions affecting her health and behaviour. The form notes:-
Special precautions: aggressive - assaultive, sudden mood swings, inappropriate touching of staff and clients!
The form also provides details of her mother, the DoCS officers in charge of her case and persons to be contacted at the Public Guardian and Protective Commissioner's Office. These included Mrs Patricia Davidson and James Ramos-Conna (each of these gave evidence before the primary judge).
36The progress notes record the following:-
19 year old lady admitted from the community following a Magistrate's order (3 months). Joanne lived at home with her mother until 1 year ago. She repeatedly attacked her mother. She then lived with her boyfriend who she also assaulted. She lived in a variety of different group homes where she attacked fellow residents and staff. She would go into neighbours' houses and refuse to leave. Eventually 6 neighbours took out a restraining order and Jo had to leave that house. After the last incident she spent 2 nights in jail and her placement here was seen as the only other alternative. Her House Manager tells us that Jo can read and write and will go through the reports, etc in the office. When asked to do something that she does not want to do, she hangs her head and will not move/answer. If pressed further, an aggressive incident will occur... She is very well known to the police in their area and has assaulted several. She has 6 charges held over of mostly assault, trespass and damage to property. Staff in the area refuse to work with her due to her aggression. The staff who accompanied Jo said that she "presents better than she is". Jo has no money sense and refuses to pay for bills, outings, etc, instead just spends her money on herself... Her medication consists of:
Epilim 500mg
Mellaril 50 mg
Primidone 250mg au 500 mg
Triphasal 28
Aurorix 150 mg
She also brought with her Medicare card, a Commonwealth Bank card and a Commonwealth Bank key card. On admission, she seemed very confident and was able to help herself to her carer's car keys without her carer knowing!
37Unfortunately, there are no records outlining the details of the assessment and treatment of Ms Darcy during her time in Unit 3. It seems that she was transferred to Unit 2 on 10 July 1996, presumably when her initial assessment had been completed.
38There is a Nursing Unit Manager's Report (Blue, 335 - 336) dated 18 July 1996. The author is Jeanette Deaves, the Acting Nursing Unit Manager. This confirms that Ms Darcy's behaviour has been "reasonably settled", enabling her to be accommodated "in a less restrictive environment".
39The author provided assessments of Ms Darcy's level of aggression, her non-compliance and sexual promiscuity while she had been in Unit 3. As to her present status, the Report states:-
Joanne has settled in fairly well in Unit 2, although there have been some verbal altercations with some of the clients. She attempts to nurture clients who are of a lower functional level, this can at times be heavy handed and domineering but mostly helpful. Joanne will take direction from staff to be gentler and less bossy. Joanne has displayed non-compliance but will usually complete tasks if she gains no positive feedback from her non-compliance.
40The Report comments on the fact that Ms Darcy had been able to maintain contact with her mother, Mrs Stringer, with weekly phone calls. Mrs Stringer visited her daughter on 17 July 1996 and she "was able to look around Unit 2 and the grounds". It notes that:-
Patrick McEvoy, Joanne's Public Guardian, has been kept informed of Joanne's progress while at Kanangra.
41The Report refers to the fact that assessments had been completed on a physical and medical basis. It provides details of the medication prescribed for Ms Darcy as at mid-July. The final part of the report concludes:-
Future plans while at Kanangra
To attend an activity training centre for diversional therapy, leisure skills and interreaction [sic] with other clients on a twice-weekly basis initially.
To be included in a program with a Special Education Teacher for assessment, then a functional literacy and numeracy skills development.
Reduction in medication as tolerated.
Speech pathologist assessment.
Overall
Joanne has settled into Kanangra reasonably well without any major aggressive outbursts. She appears to have benefited from the structured routine and limit setting on her unacceptable behaviours.
42It is convenient now to describe briefly the Kanangra Centre, its layout and functions. This summary is taken from the affidavit of Carol Tranter, the affidavit of James Conna, and the primary judge's reasons for decision. Ms Tranter was the Nursing Unit Manager for several of the units at Kanangra between 1989 and 2003. At times she was also the Assistant Director of Nursing at the Kanangra Centre. Mr Conna (originally known as 'Ramos-Conna') was at relevant times a Senior Guardian with the Office of the Public Guardian. At the time the Guardianship Order relating to Ms Darcy was made, he was the person supervising Mr McEvoy. The latter was the officer of the Guardian who had the responsibility for ensuring Ms Darcy's wellbeing and welfare in accordance with the terms of the Guardianship Order. From May 1997 to August 1997, Mr Conna had direct responsibility for her as Senior Guardian.
43Morrisett was established in or about 1901 under the Lunacy Act 1898 (NSW) and was an institution established for psychiatric patients. Kanangra was originally part of the old Morrisett Psychiatric Hospital. It is now a completely separate residential all treatment institution for people with disabilities. Morrisett Hospital still functions as an institution for the mentally ill. I shall briefly mention the history.
44In 1983, the Richmond Report (a report into Health Services for the Psychiatrically Ill and Developmentally Disabled) led to a significant change in government policy. The focus was on closing large residential centres like Morrisett and reintegrating, where it was possible, its inhabitants into the general community. The policy required a "no admissions" policy for the Kanangra residential institute. The new policy envisaged that all people at Kanangra would move into community based housing and that eventually Kanangra would empty and close.
45In about 1985, the responsibility for the 2 campus areas of Morrisett was formalised. Departmental responsibility for Kanangra, previously with the Department of Health, was split so that responsibility for psychiatric patients remained with the Department of Health and responsibility for people with intellectual disabilities was transferred to the Department of Youth and Community Services ("YACS"). YACS later became the Department of Family and Community Services and, still later, became the Department of Community Services ("DoCS"). When DoCS was created, the area north of Acacia Avenue became known as the Kanangra Centre. In or about 2001, responsibility for the Kanangra Centre was transferred from DoCS to the Department of Ageing, Disability and Home Care ("DADHC").
46In 1996, DoCS was responsible for the Kanangra Centre, which had about 150 clients, whose average age was 40 - 45. There are approximately 5 separate residential units within the Kanangra Centre. The Centre is staffed by a medical officer, psychologist, trained nursing staff with differing specialities, social educators, cooks, orderlies, cleaners and other people holding necessary qualifications for the purposes of such a residential centre. It has a number of carefully prepared activity programs as well as programs to try and assist residents to re-enter the outside community. Courses are taught, for example, enabling clients to shop, to cook, to carry out domestic duties and to learn associated skills required for everyday tasks in the community. The prevailing policy is one of "normalisation", that is, the preparation of people so that they may be placed back into the general community as quickly and effectively as possible. This will include, where financial support is available, finding accommodation either in group homes or in other suitable accommodation, having regard to the particular client's needs.
47The process of initial assessment and treatment at Kanangra may be briefly described. When a new resident is admitted to Kanangra, he or she must first go to Unit 3 for assessment. This unit has the highest client to staff ratio, and is where the most skilled and experienced staff work. In general, clients who remain at Unit 3 have a higher level of disability, combined with a range of difficult and challenging behaviours. In 1996, Unit 3 had about 17 clients. Unit 3 was (and is), as I have described, a "secure unit". Clients cannot leave the building unless the door is unlocked by staff. In addition, clients cannot move freely within Unit 3. Staff have to be asked for permission to enable internal doors to be unlocked, so that clients may pass from one area to another.
48Unit 2 is and was, during the relevant period, a secure unit in the sense that the external doors and gates were locked at all times. Keys to Unit 2 were held by staff members working in that unit. Clients, however, were able to move freely between the day room and the yard, although staff were still required to unlock doors as requested. Unit 2 had a large backyard, with a veranda and outside sitting area overlooking it. In 1966, Unit 2 had approximately 33 clients, including about 10 women and about 23 men. Sleeping arrangements were dormitory style, segregated by sex, and dorms were portioned into groups of 3 to 4 beds to provide some degree of privacy. In about 1999, Unit 2 was renovated and became "apartmentalised" to further improve privacy for clients.
49By comparison, Unit 10 was not a secure unit. The doors and gates to the yard were always open. Ms Darcy, for example, would often visit her boyfriend, Bill Troutman, who was in Unit 10. They were able to conduct intimate relationships in his room at Unit 10. Ms Darcy had to ask permission from staff to go into Unit 10 but, in practical terms, she was able to go there freely.
50There was a further cottage in the grounds known as Koala Cottage. This was cottage number 5. It was not a secure unit. Clients there could leave the cottage at will, but were expected to tell staff where they were going and for how long. Cottage 5 had about 6 clients in 1996. Ms Darcy was there for some time but, as I will indicate, when examining the history of her stay at Kanangra, serious behavioural problems on her part led to her being sent back to Unit 2.
51Ms Tranter gave evidence (Blue, 47) that if a client in any unit or cottage wanted to leave Morrisett, and expressed such a request to staff, there would generally be a preliminary discussion with the client as to the reasons why they wished to live elsewhere. If the client was adamant, the staff would then arrange to contact the Office of the Public Guardian to see whether arrangements could be made for the client to live elsewhere. The Public Guardian generally had the exclusive power to determine where persons subject to its control should live. The Public Guardian would then visit and talk to the client and liaise with the client's DoCS Case Manager. Ms Tranter said (Blue, 48):-
The Kanangra Centre cannot, would not and has not discharged a client without alternative accommodation being in place.
(I shall later examine in more detail the role and function of the Public Guardian as provided for in the Guardianship Act 1987. It is sufficient at present to note that, in cases such as the present, the public Guardian had the power, if it wished to do so, to demand that the client be released from Kanangra forthwith, and placed in alternative accommodation.)
52It is necessary now to record the history relating to the Public Guardian's developing attitude towards Ms Darcy's stay in Kanangra. I will trace in some detail the position as it developed between the date of her admission to Kanangra during 1996 and through to 1998. I will also detail the position from 1999 to 2002, but in less detail.
53It seemed to be accepted both by DoCS and by the Public Guardian that Ms Darcy had been ordered by the Local Court to reside at Kanangra for a period of either 2 or 3 months. The Magistrate's order (as it was in evidence before the primary judge) did not, however, refer to any particular period of time. There may have been discussion in Court about the likely term of her stay but, if there were, it is not reflected in the order.
54A convenient starting point for an analysis of the attitude of the Public Guardian is the note made on 8 July 1996 by Patrick McEvoy (Blue, 65). Mr McEvoy, as I have said, was the Guardian directly responsible for Ms Darcy at the time of her admission to Kanangra. In this note, he says:-
Telephone call to Alison Bate... Alison informed me that there would be a meeting to develop a plan for Joanne, this will be held with a number of professionals from the DoCS team on 15 July. The only outcome of the court case was Joanne was ordered to reside at Kanangra for 2 months because of her current state of aggression. The problems are historical, are to do with lack of funding that this [is] why there has been a delay in the programming and transition into the community. The TRU are going to become involved in early September, the earliest date that they can do an assessment... I finished up by encouraging Alison to give me an update after the meeting on Monday 15 July and she was happy to do that.
55The records are incomplete, and there are no further notifications as to the situation until further correspondence passed between staff at Kanangra and Mr McEvoy. It was clear, however that the Public Guardian was well aware from the date of the Court order that Mr Darcy was in Kanangra and that she was being assessed while in Unit 3 and then transferred to Unit 2 (Blue, 336, D - E).
56There is a document headed, "Master Plan" (Blue, 80), which had been prepared by staff at Kanangra Centre, relating to Ms Darcy. It is dated 12 October 1996. It states its primary goal as "successful reintegration with the community" and its objectives as "maintain her current living skills". The document has further detail in each of these areas, for example, details of proposals to take Ms Darcy "shopping" with the Case Manager and to provide training for skills such as "cooking, computers, work experience, numeracy, sport, craft, tap dancing and swimming".
57The participants in the preparation of the Master Plan included Patricia Davidson from the Office of the Public Guardian.
58On 16 December 1996, a letter jointly signed by Jeannette Deaves, Michelle Brown (Case Manager) and Catherine Adams (Senior Program Coordinator) was sent to Patrick McEvoy. The signatories, as I understand it, were all employed by DoCS. The letter states (Blue, 81 - 82):-
Dear Patrick,
We are writing to express our concerns with Joanne remaining at Kanangra Centre. As was discussed at her recent ISP meeting, we feel that she is currently placed in an environment where she is exposed to many challenging behaviours. This is leading to an increase in Joanne's repertoire of aberrant behaviour. She is currently displaying the following behaviours on a daily basis:
I had nine people on respite at Kanangra Centre when I was a Senior Guardian at one time. Of the nine people I was able to have three people on respite relocated to appropriate accommodation. Joanne was one of those three people. Of the other six people, I understand that their status was changed from respite to permanent and that they remained at Kanangra Centre. My advocacy played a part in having Joanne transferred out of Kanangra. I would never have consented to her status being changed from respite to permanent.
I have in the past physically had persons under guardianship removed from an institution such as Kanangra when I considered it to be inappropriate. There is one client that I had physically removed because in this case I did not believe Kanangra Centre was appropriate. When I say that he was physically removed, what occurred was that I attended the DADHC Regional Managers' office and demanded that the person under guardianship be released from their institution immediately. This was done. I have also taken steps to have other persons whom I have considered to be inappropriately placed physically removed from institutions. These people had funded alternative supported accommodation in place.
Insofar as Joanne Darcy is concerned, I did not take the step of having her physically removed from Kanangra Centre. I was aware that Joanne did not like being at Kanangra Centre and that she wished to be removed from Kanangra Centre. However, it is my view that, if I did physically remove her as I had with other people under guardianship, I would have failed in my duty of care. I was not in a position to be able to physically remove her then have her accommodated in suitable, alternative accommodation. The only other accommodation at that time which I believe may have been available to her would have been a boarding house. Given her disabilities at the time, and what I knew of Joanne, I did not consider it appropriate that she be placed in a boarding house. I felt that the placement of her at a boarding house would have jeopardised her safety and welfare.
In the end, whilst I was not happy, I had no option but to allow Joanne to remain at Kanangra. I made repeated attempts to place pressure on the relevant authorities to find suitable alternative accommodation in accordance with any plan that would meet her accommodation needs . [emphasis added]
As unfortunate as it may be, my assessment of the situation is that, whilst it was not considered appropriate, desirable or in her best interests to be at the Kanangra Centre, as a matter of necessity she was required to be there so that her welfare and safety could be ensured and her daily needs met . [emphasis added]
96Ms Davidson was cross-examined by Dr Birch SC at the trial, with the following occurring (Black, Vol 1, 195, I - T):-
Question: You see there you say "I had nine people in respite in Kanangra when I was a senior guardian at one time". Then you go on to speak about people being changed from respite to permanent. What did you mean when you used the word "respite"?
Answer: Respite means a short term stay.
Question: Then permanent means that they are intended to stay there indefinitely?
Answer: Yes.
Question: Whether they were respite or permanent, was that just the way you classified them or did you understand that DoCS itself classified them in that way if they are in Kanangra?
Answer: DoCS classified them that way.
Question: So far as Joanne Darcy was concerned, did you understand that her categorisation was always respite or that it had become permanent at any stage?
Answer: No, it was always respite.
HIS HONOUR
Question: So her residence in Kanangra was just an ongoing respite stay?
Answer: Yes.
97Ms Davidson, in her evidence, confirmed that she had taken over from Mr Ramos-Conna in August 1997. She was then taken to the various letters she had written and the report she had made for the benefit of the Guardianship Tribunal. She was taken in particular to passages in the correspondence and reports where she had referred to the fact that Joanne was being held against her will "without permission or consent". The primary judge asked the witness at this point (Black, 202, H - O):-
HIS HONOUR
Question: What happens if you don't - I mean, the fact that you don't consent, what should happen then? If you don't consent, what should DoCS have done?
Answer: They don't do anything.
Question: Yes. But what do you say they should have done?
Answer: Find appropriate accommodation for her at the time.
Question: Or just let her out?
Answer: No.
98The witness was then asked about the letter she had written on 28 August 1998 to Ms Derks and the letter of consent she had earlier given. Dr Birch SC examined the witness in relation to this as follows (Black, 203, G - J):-
Question: To your knowledge, having reviewed the file, I presume that is the only period that Joanne Darcy was in Kanangra in regard to which there was consent given by the Public Guardian. Is that correct?
Answer: Yes.
99In re-examination, she was asked by Ms Norton SC (Black, 204, L - S):-
Question: In the time that you were her Public Guardian you never made any attempt to remove her from Kanangra?
Answer: No.
...
Question: In your knowledge of the file, did the Guardianship Tribunal - or before it the Guardianship Board - ever make a recommendation that Ms Darcy be physically removed from Kanangra?
Answer: No.
Question: Were they well aware of where she was located?
Answer: Yes.
100I turn now to the affidavit of Mr Conna (Blue, 233 - 241). (Mr Ramos-Conna changed his name prior to giving evidence in the trial. I shall here refer to him as Mr Conna). In his affidavit (paragraph 6), Mr Conna said that he had the responsibility for the welfare and decision-making relating to Joanne Darcy in the period up to August 1997. He was the person "supervising the guardian who had responsibility for her wellbeing and welfare until May 1997 when he had direct responsibility until August for her as Senior Guardian".
101At paragraph 14-16 of his affidavit, Mr Conna said:-
It became necessary between mid 1999 and early December 2000 for DoCS to modify the initial funding package due to the escalating costs of the proposal for the provision of both accommodation and care and support. In each case, despite the earlier approval, the modifications required further approval by the Minister.
The Commissioner for Community Services, Mr Robert Fitzgerald AM, took the matter up with the Minister on 11 May 2000, but the evidence does not indicate whether there was a response and, if so, what it was.
By early February 2001, it seemed that the appropriate level of funding was now available (or nearly so) but the project was still held up by the need to select compatible co-residents who could reside with Ms Darcy upon her release in a property acquired especially for a small group. To make matters worse, a suitable property had been located but the vendor withdrew from the sale. The anticipation was that the various difficulties might be resolved within 12 months.
Towards the end of 2001, the vendor of the property identified for purchase increased the asking price by some $100,000, taking it out of the reach of the Department. This necessitated a further application for funding, which was not approved until 31 January 2002.
The placement of Ms Darcy into the community was finally effected in December 2002, when she was transferred from Kanangra into a group home at King Creek Road, Wauchope. The house was one specially purchased with Ms Darcy in mind, and designed to meet her specific requirements. It was located a 25 minute drive away from her mother's home. It was the first of its kind in the area and involved very significant capital outlay. In particular, the buildings had to be altered to suit the particular needs of the residents. The selection of the other residents had taken place over a considerable period of time. They were hand picked after a state-wide search for compatible persons with similar requirements and interests to Ms Darcy. The right staff also had to be employed and trained. In that regard, carers with experience working with people with complex behaviour had to be found and, where necessary, brought to the area.
113It is necessary to refer briefly to the evidence of Mr Rogers. He was an Acting House Manager with the ADD and had training and qualifications as a registered nurse, specialising in mental health and the supervision of persons with disabilities. At the time he gave his evidence, he was the House Manager at the King Creek Road group home at Wauchope. He had known, and had involvement with, Ms Darcy since around 1995. Although he did not have any direct responsibility for the delivery of DoCS services to Ms Darcy, in 1996 he was well aware of her situation. He knew that she was being supported in various ways by DoCS prior to her being ordered to attend Kanangra. Mr Rogers had been present at meetings with other DoCS workers when discussions took place in relation to the need to find methods to manage Ms Darcy's particular behavioural problems.
114Mr Rogers gave evidence during cross-examination by Dr Birch SC that he had first become involved in the planning for Ms Darcy's exit from Kanangra in, or just after, the end of 1998. He visited her several times in Kanangra in connection with preparing a proposal for alternative accommodation to enable her to leave Kanangra and be housed in the community. He had said that there was no other accommodation and supervision package available for Ms Darcy until approvals were given for the proposals to be prepared. He accepted, however, that his knowledge of the funding capacity of the Department was limited to the funds that were specifically approved at particular times (Black, 141, P). He agreed that he was not in a position to know whether in fact more generous funding, or earlier funding, could have been approved by the Department, had it seen fit to do so. However, he maintained that the lack of appropriate accommodation, and the provision of an ultimate package, to assist Ms Darcy, did not depend soley on financial matters. There was also a requirement to find other people who could be suitably accommodated with her. There was also a need to find the right staff to work with her, and the need to train those people where appropriate (Black, 142, C). These were critical factors that, quite apart from financial considerations, took a considerable time to resolve.
115Dr Birch SC, however, was critical of the time it took to work out a suitable package to have Ms Darcy relocated from Kanangra to a community home. Mr Rogers said, however, that the length of time, although considerable, was not unusual (Black, 143, O).
116In re-examination, Mr Rogers explained that, during the years 1996 to 2002, there was an extremely high level of demand for community housing. Vacancies were infrequent. There was "something like 400 people on the waiting list for accommodation in group homes" (Black, 146, J) in the Port Macquarie and Taree areas. He repeated that the majority of the planning process involved the selection of other people who could be accommodated with Ms Darcy, and who would be suitable co-residents of the home, having regard to her particular problems. He also spoke again of the difficulty of finding staff with experience of working with people with complex behaviours (Black, 147, R). This, he said, was extremely difficult particularly within the Port Macquarie region.
117He also explained that ultimately the Department had to build a "granny flat" onto the Kings Creek Road house to accommodate Ms Darcy. This was because of the difficulties that emerged between herself and the other residents. In evidence before the primary judge were a series of Court Attendance Notices showing that, after moving to Wauchope, Ms Darcy had been charged with assault on a number of occasions and dealt with by the Local Court.
118In paragraph 18 of his affidavit (Blue, Vol 2, 280), Mr Rogers said:-
I have had the opportunity to observe Joanne both before she went to Kanangra, while she was at Kanangra and on her return to King Creek. From my own observations her stay at Kanangra has meant that her behaviour has become a lot more manageable and she is better able to socially interact with others and although she still has some aggressive traits, they are more easily managed. To my observation, the programs and work done by those at Kanangra with Joanne improved her living skills immensely.
119The primary judge's findings demonstrate that this is so. The evidence establishes that Ms Darcy enjoyed considerable opportunity to venture beyond the Kanangra complex on a regular basis. This included the opportunity to play sport, to shop and to do unpaid work. She was able to attend the Samaritans in Newcastle, unaccompanied by Kanangra staff members, where she could participate in many programs such as cooking, walking, art and craft, swimming, ten pin bowling, shopping, movies and the library. She learned to use a computer and gained a variety of social skills, as the evidence indicates.
120However, as the primary judge also found, her transition back to the community was not without its difficulties. At Red, 46, his Honour stated:-
The 7 1/2 years since the plaintiff left Kanangra have not been without their difficulties. Her complex behaviour pattern persists, episodes of unruly and resistant conduct still occur, the need for 24 hour supervision remains, rules are required as to where she can go and when, and she requires to be driven to and collected from other locations, such as Port Macquarie. There have been more assaults and court appearances, including the imposition of a good behaviour bond... Mark Markey remerged and lived with the plaintiff for a time and there were incidents of violence involving him.
Initially the plaintiff was located in a group house with the other residents and carers. Ultimately, however, it became evident that she was unable to satisfactorily co-exist with the other residents. It was contemplated that the plaintiff would be moved again, but after representations by the mother and grandmother, and the reinvolvement of the Public Guardian, an annex in the form of a granny flat with a self-contained garden was constructed at further expense to DoCS for the plaintiff's sole use in which she now resides alone.
[3]
The primary judge's decision
121The primary judge gave careful and thorough attention to the lengthy and complex history I have narrated. He also carefully set out the competing submissions that were made to him on behalf of the parties to the litigation. Between paragraphs 100 and 104, he made an extensive series of factual findings which led him to the ultimate conclusion that there had not been an "intentional total restraint of the plaintiff's movement, or a complete deprivation of her liberty". Accordingly, he found, after a thoughtful analysis, that she had not been imprisoned at Kanangra.
122The factual findings do not require detailed repetition for the purpose of these reasons. Most of the individual facts found were not in dispute. A number of factual findings, however, of significance may be summarised as follows:-
Ms Darcy enjoyed considerable opportunity to venture outside the Kanangra complex on a regular basis. She experienced considerable independence of movement and activity on those occasions. She went on holidays to the snow and to the beach without the defendant's staff being present.
Ms Darcy travelled alone to visit her mother in Port Macquarie for extended periods of time. Each request from the plaintiff's mother for Ms Darcy to visit her was granted. No rules were imposed by Kanangra staff as to what Ms Darcy could or could not do at her mother's home. Ms Darcy was not coerced to ensure her return to Kanangra on any occasion.
Ms Darcy never fully comprehended the reasons why she was at Kanangra. She did not fully appreciate the implications of the court orders. She knew that she required supervision and care and that she was limited in her capacity to lead an independent existence. She was not capable of choosing an environment that was most suitable for her.
Although her guardian had the right to determine where Ms Darcy might reside, the guardian did not at any time determine that she might not reside at Kanangra. The guardian, however, continued throughout to express its consistent opposition to her remaining at Kanangra. In so doing, it accepted that, in reality, there was no other place where Ms Darcy could have been placed. The Public Guardian would not have agreed to her leaving Kanangra in the absence of a suitable alternative with an appropriate level of care and supervision.
DoCS was not under any legal obligation that compelled it to provide Ms Darcy with accommodation or services.
DoCS had limited funds that were required to be prioritised. Funding for Ms Darcy's accommodation in a group house in the Port Macquarie region was not available prior to the actual allocation. The inability of DoCS to provide the necessary funding arose because it was at all times dependent on the Department of Ageing and Disability to allocate a sufficient level of recurrent funding for the purpose.
Once that funding was made available, DoCS officers acted with appropriate speed, given the various obstacles that arose and problems that needed to be overcome, to secure the house in which Ms Darcy was ultimately accommodated, and to locate and train the carers.
DoCS, through its officers, at all times acted reasonably in the best interests of the plaintiff, having regard to her complex needs.
123At paragraph 104 (Red, 59), the primary judge, having referred to the decision of the Full Court of the Supreme Court of South Australia in State of South Australia v Lampard-Trevorrow [2010] SASC 56, said:-
In my view, this statement reflects the essence of the present case. To the extent that there was some restraint on the plaintiff's movements, this was attributable to the obligation of DoCS to provide for her care and protection, and her complex needs and requirement for supervision. The plaintiff was separated from her mother but with her knowledge and approval, because of her inability to cope with her daughter's unruly, sometimes violent behaviour and to provide for her complex needs. It would be artificial to treat the placement of the plaintiff at Kanangra as a restraint amounting to an imprisonment.
[4]
Submissions of the parties
124Dr Birch SC refined and clarified his written submissions in two important respects. First, he maintained that the issue of imprisonment was properly to be determined in this matter by a consideration as to whether Ms Darcy was free to leave Kanangra or not. Dr Birch SC accepted that the level of internal restraints upon his client - her ability, for example, to move around the complex within its boundaries - was not determinative. This was because such restraints might appropriately be considered as part and parcel of the rules of a residential complex, designed for the benefit and protection and wellbeing of the residents.
125Secondly, on the issue of justification, Dr Birch SC accepted that if the Public Guardian had agreed to Ms Darcy residing at Kanangra, this would have been a significant impediment to a finding of wrongful imprisonment.
126The appellant's submissions may, in the light of these refinements, be distilled to the following propositions:
127First, the Magistrate's orders did not authorise Ms Darcy's detention at Kanangra. Alternatively, to the extent that they did, they were not apt to sanction her detention for longer than a brief period necessary for the carrying out of an initial assessment of her disabilities and initial treatment.
128Secondly, the test as to imprisonment in this matter was to be determined by asking whether Ms Darcy could have left at any time and whether, if she had attempted to do so, she would have been prevented from leaving. Reliance for this proposition was placed on a number of authorities, particularly; Symes v Mahon [1922] SASR 447; Kuchenmeister v Home Office [1958] 1 QB 496; [1958] 1 All ER 485 ) . The application of this test must mean that the primary judge had been wrong in concluding that simply because Ms Darcy could go to her mother's home and to other places, she was not imprisoned. Dr Birch SC submitted that she could go to those places only because DoCS gave her permission to do so. More importantly, the fact that she was allowed to leave on these occasions did not change the fact that she was obliged to return to Kanangra at the completion of each outing.
129Thirdly, Dr Birch SC accepted that Ms Darcy carried the onus of demonstrating that there was an intentional total restraint of her movements, and a complete deprivation of her liberty, such that she was imprisoned. In this regard, emphasis was placed upon the evidence of Ms Tranter that Ms Darcy would not have been released from the Kanangra Centre unless and until alternative accommodation was arranged for her, and that until that time, she was not free to go (Exhibit B, Blue 48 (46)).
130Fourthly, the respondent carried the onus of proving justification for imprisonment. In that regard, there was no statutory basis permitting DoCS to make any decision to keep the appellant at Kanangra after the initial assessment period. Moreover, the clear evidence of Mr Conna and Ms Davidson was that (except for a brief 6 week period in 1998) the Public Guardian did not consent to the appellant being at Kanangra. Nor had there been any determination made by the Public Guardian that Kanangra should be the appellant's place of residence. There was nothing in the evidence of either witness that would qualify the clear statements in the correspondence that (save for the one period) consent had not been given.
131Fifthly, the primary judge's reliance on State of South Australia v Lampard-Trevorrow had been misplaced.
132Sixthly, there was no scope for the operation of the doctrine of necessity in the present matter. This was because the provisions of the Mental Health Act created an overall regime for the detention of mentally ill persons. There was no parallel avenue available for the detention of persons with a disability short of mental illness. In any event, the doctrine of necessity, if applicable, could only operate in an emergency situation, and for a brief time. It could have no scope to operate over the period of time Ms Darcy had been in Kanangra.
133Ms Norton SC submitted first that the orders of the Magistrate enabled and required Ms Darcy to reside at Kanangra for assessment and treatment. The order was open-ended as to time. Alternatively, senior counsel argued that, the order having been made, there was an authority for Ms Darcy to be kept at Kanangra for a reasonable time for assessment and treatment. The evidence established that her assessment and treatment in Unit 3 occurred within a reasonable time-frame. The order, by implication, carried with it the authority to confine the appellant for the purpose of the assessments that were carried out.
134Secondly, Ms Norton argued that the primary judge's overall analysis on the imprisonment issue had been correct. The factual evaluation of all the matters relied upon by the primary judge were open to him and were not shown to be incorrect. Ms Norton placed particular reliance upon Ms Darcy's ability to visit her mother, to go to Newcastle for the Samaritans outings, and to go on holidays to various places. Reliance was also placed upon her outside activities in the Morrisett area, including recreational, work related and social activities.
135On the issue of justification, Ms Norton placed reliance upon the fact that, on each of the occasions Ms Darcy left Kanangra, she had done so with the approval of the Public Guardian and, by inference, the Guardian's consent to her return to Kanangra as her residence, albeit not on a permanent basis.
136Thirdly, Ms Norton relied upon the terms of the Guardianship Act 1987 . The Public Guardian became the decision maker for the appellant in relation to her place of residence and her medical treatment. To this extent, the fact that Ms Darcy was unhappy on occasions at Kanangra was not to the point. If she were there against her will, that was not to the point. Similarly, the fact that she was not free to leave Kanangra was essentially because the Public Guardian had the task of approving alternative accommodation for her, and had determined not to do so until and unless appropriate alternative accommodation with care was available through the Department and DoCS.
137Fifthly, Ms Norton argued that, a correct analysis, there was a de facto consent in the sense that the Public Guardian was prepared to accept the status quo created by the Magistrate's order and following upon the preliminary assessment period. The Public Guardian at no stage made a demand that Ms Darcy leave Kanangra forthwith and it had not done so because both it and DoCS well understood that she could not leave unless and until appropriate accommodation was available to her.
138Sixthly, Ms Norton accepted that the Public Guardian did not make a determination that Ms Darcy reside at Kanangra. She argued, however, that this was so because the appellant was already there by virtue of the Magistrate's order. The Public Guardian thereafter accepted her continued residence there, although satisfied that it was not a suitable place for her to reside on a permanent basis.
139Alternatively, Ms Norton argued that the defendant's duty of care to the appellant constituted a source of power for her continued detention at Kanangra, pending the allocation of funds and resources to provide permanent housing in the community for her.
140Finally, while recognising the different factual situation, Ms Norton argued that the position in Lampard-Trevorrow was analogous to the present case: a person with the appellant's developmental disabilities and personality disorder might lawfully be subject to restraints that were necessary for her safety and wellbeing. The only restrictions on her coming and going related to safety issues, the selection of appropriate destinations, and, against the background of the Public Guardian's consent being obtained at all times. Ms Norton argued that the combination of all these matters denied the existence of imprisonment and provided, in any event, a source of justification for the appellant's continued residential accommodation at Kanangra pending the allocation of funds and the selection of a home to enable her return to the community.
[5]
Relevant principles of law
141In the 10 th edition of Fleming's The Law of Torts the learned authors say (at p 36 [2.80]):
The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is.
142It is further observed, in the same paragraph, that the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but that it has long outgrown these simple beginnings.
143The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullager J in the following terms:
The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise.
144The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential ( R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289). The restraint must be upon a person's liberty to come and go and must be against his or her will (Second Restatement of Torts (1965) United States; Gavin McFadzean v Construction, Forestry, Mining and Energy Union (CFMEU) [2007] VSCA 289 at [37]).
145Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation: State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 at [282].
146This statement of the relevant principles is not intended to be a comprehensive one. Rather, it is confined to the issue in this appeal. The principles, as stated, are not essentially in contest as between the parties. The principal contest, as will have been seen, is as to their application to the facts I have earlier stated in comprehensive detail.
[6]
Resolution
147The questions arising in this appeal are not without their difficulty. On the one hand, it was scarcely satisfactory that it took some six and a half years for the relevant state department to finally relocate Ms Darcy in suitable accommodation in the community. In general terms, it may be accepted that it was necessary to find funds that would not only provide her with her own custom-adapted accommodation but would also enable her to be provided with the level of daily care that she required, having regard to her disabilities and developmental problems. Throughout her time at Kanangra, many of the staff there were plainly concerned that she should be returned to communal living at the earliest possible time. There was a general appreciation, acknowledged by all the interested parties, that institutional living was not in her best interests. On the other hand, there seems little doubt that the provision of continual care, counselling and training at Kanangra contributed, in large part, to her ability to reach a level of maturity, and to become more adept at maintaining a degree of normality in her dealings with other people in the general community. At the time she was first confined to Kanangra, it is clear that Ms Darcy had presented a serious threat to herself and to others because of her aberrant behaviour.
148The traditional and historical concept of false imprisonment, does not, it might be thought, sit easily with the factual circumstances of this matter. However, it is necessary in making the relevant analysis to approach the issues in accordance with accepted doctrine. Importantly, it is necessary to consider firstly whether Ms Darcy was detained and secondly, if she were detained, whether it was lawful. The two issues should be considered separately, and the issue of detention must be considered and determined before one can turn to the issue of justification (see Lord Steyn in R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289; see also Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1992] 1 AC 58 at 162 C-D per Lord Bridge of Harwich; and Collins v Wilcock [1984] 1 WLR 1172 per Robert Goff LJ). I turn first to consider the issue of detention.
149The trial Judge concluded, as I have said, that there had not been an "intentional total restraint of the plaintiff's movements or a compete deprivation of her liberty". In fundamental terms, this was the basis of his finding that Ms Darcy could not succeed in the action.
150There is much to commend his Honour's assessment of the factual situation in relation to this conclusion. There is no doubt that Ms Darcy enjoyed considerable opportunity to venture outside the Kanangra complex on a regular basis. Dr Birch SC argued, however, that Ms Darcy's freedom of movement, to the extent it occurred, was generally on a supervised basis. To some degree, that proposition was made out but not altogether. For example, the only reason that Ms Darcy had supervision on the way to the train when she was undertaking a journey to see her mother was that she asked for supervision. She was nervous and apprehensive about getting to the train. So supervision in that case was not on the basis of a rule or regulation devised by Kanangra itself. On the other hand, there was plainly a level of supervision while Ms Darcy was either working or moving around Morrisett shopping area. Again, it was not total supervision, and it derived from a reasonable concern for her well-being but there was plainly an element of supervision involved.
151The more powerful argument advanced by Dr Birch SC, was the proposition that Ms Darcy could leave Kanangra only with permission. Counsel suggested that the critical test is whether, if she had attempted to leave, she would have been prevented from doing so. To put it another way, the argument was that even though she was allowed to leave the institution on many occasions, she was nonetheless obliged to return to Kanangra at the completion of each outing.
152In my opinion, this was the correct test to be applied. It is consistent with the authorities to which I have made earlier reference. However, a factual evaluation of the question is, like so many aspects of this appeal, not without its difficulties. Dr Birch SC highlighted Ms Tranter's evidence (Blue 48) which suggested that if a patient either refused to return to his or her unit, or went missing, the nursing staff would call the police and, when the patient was located, would arrange for the patient to be returned to Kanangra. This was not, however, for the purposes of confinement but rather out of concern for her well-being. On the other hand, as I earlier indicated (at para 51 above) there was a process followed at Kanangra in circumstances where a patient expressed a request to live elsewhere. It does not seem, however, that this process was followed in the case of Ms Darcy. There was a very good reason why this was so. It seems to have been accepted that, for the time being, she should stay at Kanangra. As I shall mention shortly, the Board the Public Guardian her mother and the staff at Kanangra recognised that there was no-where else she could reside at least on a short term basis. This was so notwithstanding that she was unhappy to be there and had expressed this on many occasions. This was the case notwithstanding that Ms Tranter (and many other staff at Kanangra) thought it was not an ideal place of accommodation for her. Ms Tranter said essentially that this was so because she was "too young and ... did not have access to peers".
153With every respect to the findings of the trial Judge, I have come to the conclusion that the facts in the present matter require a finding that Ms Darcy was detained, in the sense that this expression is used in the tort of false imprisonment. It is clear that Ms Darcy could not leave Kanangra without permission and, whenever permission was given, she was obliged to return to the institution at the conclusion of her sojourn. She was compelled to remain there and to return there, even though the compulsion was of the mildest kind. The principles I have earlier indicated demonstrate that "any restraint within defined bounds which is a restraint in fact may be imprisonment". Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 per Lord Acton.
154In addition, it is important not to overlook the original circumstances in which Ms Darcy came to be at Kanangra following the order by the local Magistrate. She was taken to Morrisett and, for a time, kept in a highly secure environment. After her initial treatment and assessment, she went into the less restrictive environment of Unit 2, and later for some months to Koala Cottage. It seems to have been assumed by everybody involved (including Ms Darcy herself) that she was not free to leave Kanangra unless and until alternative accommodation was made available for her in the community. Although the "total restraint" imposed on Ms Darcy by her continued detention at Kanangra bears no similarity to what might conventionally be described as "imprisonment", it was detention, in my opinion, nevertheless.
155Accordingly, I have concluded that, for these reasons, the primary Judge fell into error on this point.
156I turn to the second, and to my mind, more critical consideration: was Ms Darcy's continued detention at Kanangra sanctioned or justified in law? It is clear that the order made by the local Magistrate on 20 June 1996 provided justification in law for Ms Darcy's initial detention at Kanangra. Section 32 of the Mental Health (Criminal Procedure) Act 1990 authorised the Local Court to make the order that was made. There was a statutory basis for the imposition of a condition that required Ms Darcy to attend at the place specified by the Magistrate for assessment of her mental condition or treatment or both. The order made was expressed in very brief terms and did not contain any express temporal limitation. Ms Darcy was simply ordered "to attend at Kanangra Centre, Morrisett Hospital". On one view, there was no time limitation and the order was made in absolute terms.
157Dr Birch SC submitted, however, that the order should not be interpreted in this way. I agree with that submission. The order of the Magistrate, although expressed very briefly, simply required Ms Darcy to attend at Kanangra for the assessment of her mental condition and treatment following upon such assessment. It could not be interpreted to require her detention there indefinitely. Ms Norton accepted that, if this were so, the order should be interpreted as requiring that Ms Darcy be detained at Kanangra for the stated purposes for a reasonable time to allow both assessment and treatment to occur. I agree with that submission.
158As it happened, Ms Darcy was both assessed and treated in Unit 3 and was then moved into Unit 2. Consequently, she was in the most secure Unit at Kanangra for a little under 3 weeks. I have earlier set out detail of her treatment and assessment while in Unit 3. There is also the report from Jeanette Deaves dated 18 July 1996 which described her progress once she had been moved into Unit 2. At that time, she was, according to the report "reasonably settled", and sufficiently so to enable her to be accommodated in a less restricted environment than Unit 3. It will be recalled that her mother came to visit her on 17 July 1996 and that her Public Guardian, Patrick McEvoy, had been kept informed of her progress to that point. In addition, a comprehensive plan had been drawn up for her future treatment at Kanangra.
159As a result, I consider at the outset that the local Magistrate's order sanctioned and justified Ms Darcy's removal to Kanangra. As well, it sanctioned her detention there for a reasonable time. Secondly, I consider that this would extend up to and perhaps shortly beyond 20 July 1996. It is difficult to be categoric about the end point of a reasonable time. This is because as at 20 July 1996, Ms Darcy was about to embark on a course of treatment that had been determined as a result of her initial assessment. However, I am not prepared to find that the local Magistrate's order could have effect so as to justify her detention beyond August 1996. I consider that it would have been spent at or about that time.
160There was some desultory argument to suggest that the Magistrate's second order made in December 1996 may have had some role to play in providing a lawful justification for further detention. That order, however, simply required that Ms Darcy "accept supervision and treatment available to her from DOCS". It said nothing as to her continued residence at Kanangra.
161Dr Birch SC's argument took up the situation as it stood in about August 1996. As I have indicated, his simple proposition was that, except for a brief period in 1998, there was no consent by the Public Guardian and no determination made at any time that Ms Darcy should reside at Kanangra. That being so, Dr Birch SC argued, her continued detention, from about August 1996 until the move to Wauchope in December 2002, must be seen as unlawful.
162It must be accepted on the basis in the facts I have earlier stated, and in particular the evidence of Mr Conna and Ms Davidson, that, save for one brief period in 1998, the Public Guardian did not expressly consent to Ms Darcy remaining at Kanangra after the initial assessment period had come to an end. It must also be accepted from those facts that the Public Guardian had never expressly determined that Ms Darcy should reside at Kanangra. Indeed, it must be accepted that the Public Guardian, and its senior officers, at all times considered that Kanangra was not a suitable place for the permanent accommodation of Ms Darcy and that her best interests required that she live in the community.
163Notwithstanding the acceptance of these matters, I have come to the conclusion that a careful analysis of the attitudes and actions of the Public Guardian throughout the entire period provide a justification in law for her detention. I shall briefly state why I have come to this conclusion.
164The starting point is an examination of the Guardianship Act 1987 itself. The second consideration relates to the terms of the orders made by the Guardianship Board at Port Macquarie on 28 March 1996. The Act came into effect in August 1989. It established an adult guardianship system for people with disabilities and introduced, amongst other things, a scheme for consents to medical and dental treatment on behalf of adults who were incapable of consenting for themselves. Central to the legislation was the Guardianship Board constituted under the Act (later to be known, by amendment, as the Tribunal) and the Public Guardian who was given functions under the Act and cognate function under other legislation. The Public Guardian may be appointed in circumstances where no family member or other person is suitable to be appointed a "private" guardian under the Act.
165Ms Darcy's case involved a typical situation. The Guardianship Board was required to respond to an application, instituted essentially by DoCS, in a case where an adult person with disabilities was unable to be cared for by family or close friends. As the Board records indicate, it was satisfied that Ms Darcy did not have the capacity to manage her personal affairs and was a person in need of a guardian. One very important aspect of the considerations undertaken by the Board in March 1996 related to the difficulty of finding accommodation for Ms Darcy. This extended not only to her family situation but to her inability to live harmoniously with other people in shared accommodation. There was also the problem that funding for Ms Darcy's support and care was likely to "run out" eventually. It was against the background of those circumstances that the Board made the formal findings it did (see para 25 above).
166The limited guardianship order made on 28 March 1996 placed Ms Darcy under the guardianship of the Public Guardian for an initial period of 12 months. The precise functions conferred upon the Public Guardian related to accommodation, that is to determine where Ms Darcy was to live; to determine her health care and treatment; and to consent on her behalf to medical and dental treatment. In addition, a function was conferred to make decisions on her behalf concerning major services to which she would have access including accommodation support services and leisure services. Importantly, for present purposes, the orders carried the clear consequence that Ms Darcy, while the orders were in force, could not herself choose where she lived. The capacity to make that decision had been taken from her and conferred on the Public Guardian. In that sense, her wishes in that regard were not irrelevant but they were not determinative.
167I have earlier referred to the standard conditions imposed by the guardianship order. These included the requirement that the Public Guardian obtain and take into consideration her views when significant decisions were made. No doubt, this extended to her place of residence.
168Dr Birch SC made the point (in cross examining Mr Conna) that the Public Guardian never made any decision that Ms Darcy reside at Kanangra. This is undoubtedly correct. However, it is equally correct that the Public Guardian did not make any determination at any time between 1996 and 2002 as to where Ms Darcy should reside. In my opinion, Ms Norton SC is correct in submitting that one reason for this was that the decision as to Ms Darcy's residence was, at least initially, made by the local Magistrate. This was, it appears, because the appellant was already in residence there by virtue of the Magistrate's order. The fact that no determination was made by the Public Guardian thereafter may be seen as providing some support for the proposition that the Public Guardian simply accepted her continued residence there, even though it did not regard Kanangra as a suitable place for her to reside on a permanent basis. It accepted, as Counsel put it, the status quo, at least on a respite basis.
169That this was the situation can be appreciated from a careful examination of the events both before and immediately after the time when Ms Darcy was first sent to Morrisett. It is clear that there was frequent communication between Alison Bate, the case manager for DoCS at Port Macquarie, and officers of the Public Guardian during April 1996. This is clear from the running notes referred to in paragraph 26 above. It must have been appreciated by the Public Guardian that a crisis was looming in connection with Ms Darcy's future residence. It was only a matter of a week or so after the guardianship order was made that information was provided that Ms Darcy was required to attend Court regarding assault charges against her. The regional manager for the Public Guardian noted that Legal Aid had been retained for Ms Darcy and that the Magistrate had, to that time been dealing with the assault and malicious damages charges under the Mental Health (Criminal Procedure Act) 1990. On 16 April 1996, Ms Bates informed the Public Guardian that Ms Darcy had been evicted from her unit. In these discussions the Public Guardian suggested respite placement might be arranged in Newcastle or Cooinda in the New England area. Ms Bates, realising the difficulties, suggested Kanangra. The Public Guardian stated that this would not be "a preferred option" and that Ms Bates would need to show that all other options had been tried and failed "before Kanangra could be regarded as acceptable". This was consistent with the Public Guardian's general view that communal living was preferable to institutional residence.
170The Public Guardian's regional manager authorised Mark Rozanc to visit Port Macquarie in late April to discuss the matter personally with Alison Bate. The meeting is recorded in the running notes for 23 April 1996. At that time, Ms Darcy was living in a 2 bedroom unit and receiving 24 hour care. Her funding was supplied by DoCS on the basis of "Post-school Options and Ex-Ward" (presumably a reference to an ex ward of the State, as Ms Darcy had been during her minority). The discussion revealed that Ms Darcy was to be evicted from these premises on 16 May 1996. Ms Bate wanted to pursue Kanangra for the purposes of future accommodation. Ms Bate discussed all of the other options and the difficulties with them. For example, Ms Darcy's family did not wish to care for her, and it was difficult to find carers who would work with her due to her difficult reputation. Mr Rozanc told Ms Bate that before Kanangra would be considered a number of those options should be tried at first, or at least considered.
171Later that day, Mr Rozanc visited Ms Darcy. She expressed a wish to reside in a house or flat with another boarder, preferably with her friend, Mr Marki. Mr Rozanc noted that Ms Darcy "has no concept of boarding houses or respites".
172It is therefore clear that, well before the Court hearing, the Public Guardian saw Kanangra as a last resort but realised nonetheless that it was a clear possibility that Ms Darcy would have to reside there if other options were not available. The experiment of placing Ms Darcy into a Department of Housing flat with a friend did not work. In fact, the situation became catastrophic and Ms Darcy ended up in custody facing even more serious charges. The Court Order put an end to any realistic possibility of those options, even assuming there was a possibility they could be achieved. For example, home based respite was out of the question. Her family was simply not prepared to assist. Public housing with accommodation involving a friend had failed drastically. There remained a problem with each of the other options and Ms Darcy's behaviour made it impossible to obtain carers who would work with her. Her violent outbursts and erratic behaviour posed a threat to carers, co-tenants and neighbours.
173The Public Guardian's running notes show that on 19 June 1996 Ms Bate advised that she did not have an alternative placement option for Ms Darcy. She could not return to the flat in view of the fact that she had assaulted her flatmate. Ms Bate candidly revealed that there was simply no longer a contingency plan that would work. Although the Public Guardian had taken the position that it would not consent to Kanangra unless other options had been fully explored, it was next learnt that Ms Darcy was in custody and would be spending the night in goal. There is no entry recording the communications between Ms Bate and the Public Guardian immediately after the Court Appearance and the subsequent Court Order. There is no reason to suppose, however, that contact was not made with officers of the Public Guardian to inform them what had happened. It must have been apparent to all, as it was to the local Magistrate, that it was either Kanangra, where appropriate treatment was available, or Mulawa Women's detention centre.
174Patrick McEvoy spoke to Alison Bate on 8 July. It is clear from this communication that the Public Guardian was well aware that Ms Darcy had been ordered to attend Kanangra and had in fact been residing there during the last week of June and the early part of July. Discussion between Ms Bate and Mr McEvoy proceeded on the basis that there were to be future assessments at Kanangra and decisions made concerning Ms Darcy, including her medical treatment. For example, there was a discussion about the need to increase her medication. These was also a discussion about her behaviour management. Both parties appear to have assumed that the Local Court Order was operative for 2 months "because of her current state of aggression". There was, however, no suggestion that Mr McEvoy asked at any time for Ms Darcy to be released forthwith. The two month period following the Court Order came and went. Ms Darcy remained at Kanangra after that time, clearly with the approval of the Public Guardian.
175This position was maintained throughout the remainder of 1996. The Master Plan prepared on 12 October 1996, for example, had been formulated with the participation of a number of staff from within Kanangra and with the assistance of Ms Davidson from the Public Guardian. It can be safely said that, well after the initial 2-month period, the Public Guardian was fully aware of the assessments that had been made in relation to Ms Darcy. It knew of the treatments that she was receiving and was aware of the proposals for future treatment and training she was to receive at Kanangra to enable her eventual reintegration back into the community. There is no doubt that all concerned wanted to see this achieved. But equally, there can be no doubt that the Public Guardian was well aware of her continued residence at Kanangra and made no demand that she be required to leave. It can also be safely assumed, from the involvement of Ms Davidson in the preparation of the Master Plan, that she accepted that Ms Darcy should, at least for the time being, continue to reside at Kanangra. The Master Plan recognised that "Joanne would like to go to live in the community, Port Macquarie preferably." (Blue 80). The acceptance by Ms Davidson of Ms Darcy's remaining at Kanangra as respite placement (that is, on a temporary basis) was plainly arrived at after taking into account Ms Darcy's wish to live in the outside community.
176The next major sequence of events occurred in December 1996 when Ms Deaves, Ms Brown and Ms Adams wrote to Patrick McEvoy expressing their concerns regarding Ms Darcy remaining at Kanangra. The letter urged Mr McEvoy to "push" the Department for special funding to enable Ms Darcy's return to the community.
177It is significant that, far from the Public Guardian demanding that Ms Darcy be released from Kanangra at the end of 1996 and the beginning of the following year, it was the staff of the institution who were taking the initiative to have the Public Guardian institute advocacy on Ms Darcy's behalf. This tends to confirm that, during that period, there was an acceptance on the part of the Public Guardian that she should continue to reside and be treated at Kanangra, at least on a respite basis.
178It is not without significance that Mr McEvoy in his letter (signed under the name of the Director) records that Ms Darcy had been "due for discharge" in August 1996, but that the financial resources to enable her support in the community were not then available and "her discharge has therefore been postponed indefinitely". There is no suggestion in Mr McEvoy's letter of any demand being made to the Department (or for that matter, DoCS) that Ms Darcy be required to leave Kanangra forthwith. The request is simply for funding. There is no suggestion, or even contemplation, that she should exit Kanangra without funding. To the Public Guardian's knowledge, she had been at Kanangra for over 7 months at the time of this correspondence. Indeed, in a very real sense, the correspondence confirms an acceptance of her remaining there, at last for the time being.
179Acceptance of the residential status quo is further to be seen in the letter written by Mr McEvoy to the three staff members at Kanangra who had prompted him to write to the Minister on Ms Darcy's behalf. It is also to be observed that the (no doubt disappointing) reply from the director on 25 February 1997 did not elicit a demand for Ms Darcy's release. The Public Guardian's report to the Board on 10 March 1997 simply observed that Ms Darcy would "only succeed in being returned to the community if accompanied by a funding package and maximum community support to manage behavioural issues". This entry appears under the heading "Temporary Accommodation". The summary of the Public Guardian's views on accommodation reveals that it was contemplated that there would be a resumption of continued advocacy for Ms Darcy to be returned to the community. However, there was not the slightest suggestion that the Public Guardian contemplated asking that she be returned to the community at that point. The records indicate a continued acceptance that she should remain there while attempts were made to secure a more appropriate non-institutional placement. The report also acknowledged the approvals that had been given by the Public Guardian for Ms Darcy to have regular "at home" respite with her mother in Port Macquarie. These tacitly accepted her continued residence at Kanangra and the requirement that she should return there at the end of each contemplated domestic sojourn.
180The Board meeting on 10 March 1997 was held at Kanangra. Patrick McEvoy was at the meeting as were the relevant staff from Kanangra. This meeting was later adjourned to enable Mr Mussatt and Mr Smith to attend the next guardianship meeting on 3 June 1997. The records show that both Mr McEvoy and Mr Conna were well aware of Ms Darcy's situation, But again no attempt was made to do other than to allow Ms Darcy to remain at Kanangra on a temporary basis while various manoeuvres were undertaken to see whether her release could be secured. The June meeting of the Board took place at Kanangra when, after considerable discussion, the Board ordered an extension for a further 12 months. Ms Darcy was at this meeting as was Mr Conna. Also present were a number of the treating staff from Kanangra. It was clearly the wish of all present at the meeting that Ms Darcy should be returned to Port Macquarie as soon as possible. However, the reasons for this not being presently possible were explained and generally acknowledged. Mr Smith was spoken to by telephone. He indicated that all the current funding was presently committed. No extra money was available at that time. Nevertheless the Board remained strongly of the view that Ms Darcy's welfare could only be promoted by her "immediate return" to her home town with appropriate support. It seems that, once again, the Public Guardian accepted Ms Darcy remaining at Kanangra on a temporary basis while further efforts were to be made during the ensuing 12 months to obtain funds to provide for her relocation in the community. This is confirmed by the subsequent correspondence which passed between Ms Durrington and Mr Conna in June 1997. Indeed, in his letter on 16 June 1997, Mr Conna devised a new approach. This was to obtain material that might suggest that substantial improvements had been made in Ms Darcy's behaviour while she was at Kanangra. Mr Conna contemplated that this "change" in her behaviour might lead to a wider range of community housing becoming available. Unfortunately, this new approach quickly failed. Ms Darcy's aberrant behaviour, which led to her being taken from Koala Cottage and moved back to Unit 2, left Mr Conna's plans in complete disarray.
181Mr Conna continued with his efforts on Ms Darcy's behalf through the early part of 1998. He was then replaced, as I have earlier stated, by Ms Davidson. She took over as senior guardian for Ms Darcy during the first half of the year. It is clear, from Mr Conna's evidence, as a whole, that, while he devised one form of tactic or another in his endeavours to "coax" the Department into allocating funds for Ms Darcy, he did not consider that, during his time, Ms Darcy was being held against her will or as he said, more importantly, she was not held against the will of the Public Guardian while she was at the centre [para 21 Conna affidavit: see para [102] above]. His correspondence, he pointed out, was part of an advocacy campaign on her behalf. Mr Conna recognised that a request from the Public Guardian that Ms Darcy leave Kanangra would have, in effect, put her out in the streets where she ran a very high risk of being incarcerated. He freely conceded that the Public Guardian itself could not fund accommodation for her or provide accommodation to her. In his own words, he recognised the reality, namely that "there was no other place where Ms Darcy could be accommodated."
182Mr Conna expressed the opinion that Kanangra was the most appropriate placement for Ms Darcy "in the circumstances", even though it was not ideal. He maintained that the use of the word "consent", in his and Ms Davidson's correspondence, should not be seen as a reference to the Public Guardian not agreeing to Ms Darcy being at Kanangra.
183Ms Davidson, it must be said, conducted a more aggressive campaign than had Mr Conna. Right from the outset, her advocacy centred upon an insistence in correspondence and meetings that the Public Guardian had not "consented" to Ms Darcy being at Kanangra. It is clear from Ms Davidson's evidence that she used the "lack of consent" theme as a tactical weapon to "frighten" the Department into more rapidly finding funds to allocate to Ms Darcy's case. Her evidence, however, demonstrated that she would not have consented to Ms Darcy leaving Kanangra unless appropriate accommodation were available for her. It is to be inferred that she, like Mr Conna, would not have consented to Ms Darcy moving out of Kanangra and being put in a boarding house. Nor would she have agreed to other accommodation without 24-hour care.
184In paragraph 17 of her affidavit [see 95 above], Ms Davidson made it clear that she "had no option but to allow Joanne to remain at Kanangra". Ms Darcy was "required to be there so that her welfare and safety could be ensured and her daily needs met". In that sense, it seems quite clear that Ms Davidson, who had a long period of responsibility for Ms Darcy's accommodation, despite her misgivings, tacitly agreed to Ms Darcy remaining at Kanangra throughout 1998 and 1999. It is fair to say that thereafter the Public Guardian never disengaged from this position of tacit approval. With its public face, the Public Guardian continued to assert that no consent had been given but, in reality, it permitted Ms Darcy to remain at Kanangra while the battle for funding continued.
185The position changed at the end of 1998 following the grant of funding. Of course, it was to be a number of years before Ms Darcy was finally moved to her own home at Wauchope. However, the tone of the Public Guardian's advocacy subsided somewhat with the prospect of community placement for Ms Darcy. The process moved slowly but inexorably to its fulfilment. In all other respects, nothing much changed between 1998 and 2002. The Public Guardian, continued its tacit acquiescence in Ms Darcy remaining at Kanangra while, at the same time, prompting the Department to resolve the bureaucratic and financial problems that arose during this last period of her residence at Morrisett.
[7]
An Assessment of the Evidence
186It is my view, as I have said, that the lengthy and detailed process outlined in the evidence, when examined carefully, demonstrates that the Public Guardian by its actions provided justification in law for Ms Darcy's continued residence at Kanangra as respite accommodation. In summary, this emerges from the following matters:
(1) The Public Guardian had the power to determine where Ms Darcy should reside. It had no need to make a determination in 1996 at the time Ms Darcy was sent to Kanangra because of the orders made by the local Magistrate.
(2) While it is true that the Public Guardian never made an express determination that Ms Darcy should live at Kanangra, it is clear that it did not determine that she should live elsewhere. The Public Guardian was the only body which could make such a determination. It could not be said that she was homeless for 61/2 years.
(3) The Public Guardian throughout the years 1996 to 2002, while publicly advocating that she should be released from Kanangra, never required that she leave forthwith. Indeed, for the reasons given in the evidence, it would never have done so, recognising as it did the danger of harm to Ms Darcy, and perhaps to others. It recognized the very real possibility of her behaviour leading to her custodial confinement. There was a recognition and acceptance that, pending her return to the community, Kanangra, while not ideal, should be her place of residence. She was, in that sense, allowed to reside there.
(4) The Public Guardian provided consent for each and every occasion when Ms Darcy left Kanangra for holidays, visits to the family or for other reasons. Each of these consents was given on the basis that Ms Darcy would be required to return to Kanangra at the end of the trip.
(5) The complexity of facts surrounding the advocacy of the Public Guardian on her behalf through those responsible, namely Mr Conna and Ms Davidson, show that each accepted her staying at Kanangra on a temporary basis, while at the same time, continuing with overtures for funding that would enable her to leave. In particular, Ms Davidson raised the consent issue as a tactical weapon to persuade the Department into moving more promptly into the allocation of funds upon Ms Darcy's behalf.
(6) The evidence of both Mr Conna and Ms Davidson reveals that, in truth, the Public Guardian did at least tacitly consent to her remaining at Kanangra, provided that she remained there on a temporary basis and not as a permanent resident. There was a common understanding between DoCS and the Public Guardian that Ms Darcy's residential status, however undesirable, should remain as it was while efforts were made to return her to the community.
187For these reasons I would find that the appellant has failed to make out the tort of false imprisonment against the respondent and I would uphold the principal Order made by the trial Judge.
[8]
Matters unnecessary to decide
188There are two areas where it is unnecessary to decide arguments that were touched upon during the taking of submissions. The first is the issue as to whether the so called doctrine of necessity justified the detention of the appellant. In general terms, the common law does not confer upon a private individual or an institution the power lawfully to detain, in a situation of necessity, a person of unsound mind who is a danger to himself or others. However, there is a power to impose a temporary restraint on a person who "has run amok and is a manifest danger either to himself or to others" ( B v Forsey (1988) SC HL 28 per Lord Keith at 63, Lord Griffiths at 68).
189An argument was advanced by Dr Birch SC that the doctrine of necessity has no application in this State because the detention of mentally disabled people in hospitals in NSW is governed by the provisions of the Mental Health Act 1990. Dr Birch SC argued that there is simply no scope for the operation of any common law doctrine of necessity so as to permit someone to be detained in a hospital or treatment centre other than under the provisions of the Mental Health Act 1990.
190This difficult question need not be resolved in the present matter. This is so because of the findings I have made in relation to lawful justification. In any event, however, it could not be said that the doctrine of necessity could possibly extend to permit the detention of a person for the period of time Ms Darcy was kept at Kanangra. There is no authority that would allow such a lengthy detention.
191The second issue is whether the decision in State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 was wrongly applied by the trial Judge. Once again, in view of the primary finding I have made, it is unnecessary to resolve this aspect of the dispute. In any event, his Honour merely used the decision as an analogy and it formed no critical part of the reasoning process that led to his Honour's conclusion.
[9]
Damages
192I do not accept Dr Birch SC's submissions that the trial Judge fell into error in assessing damages in the sum of $100,000. In my opinion, the contingent damages assessed fell within a reasonable range and should not be disturbed. Moreover, I consider his Honour was correct to find that this was not a case that called for either aggravated or exemplary damages.
193Aggravated damages are awarded to compensate a plaintiff for increased suffering due to the manner in which the defendant has behaved in committing the wrong. It has been said that aggravated damages are intended to compensate the injured plaintiff because the more reprehensible the wrongdoer's conduct the greater the indignity the plaintiff suffers and the greater the outrage to his feelings ( Uren v John Fairfax and Sons Pty Ltd (1966) HCA 49; 117 CLR 118 per Windeyer J at 151)
194In Australian law, an award of exemplary damages is intended to punish the defendant and also to deter the defendant, and others, from behaving in the same or similar reprehensible manner. The objects of such an award encompass condemnation and admonition of the defendant and his behaviour. The purpose of damages of this kind is to mark out the court's strong disapproval of the conduct and to visit retribution on the person thus sanctioned. It also embraces the notion that such an award will assuage the victim's potential desire or need for revenge and thus avoid any temptation to engage in self-help likely to endanger the peace. Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8-13; Uren v John Fairfax and Sons Pty Limited [1966] HCA 40; 117 CLR 118 at 138; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNexus Butterworths [7.2] at 98-99.
195The type of conduct that will attract an award of exemplary damages has been described as "conduct showing a conscious and contumelious disregard for the plaintiff's rights"; XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 at 472 per Brennan J. It has plainly been recognised in cases where trespass to the person has been alleged against police officers who have been shown to have acted in a high-handed and contumelious fashion: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78; Knight v State of New South Wales [2004] NSWSC 791 per Hoeben J.
196In Lamb v Cotogno , at 8, the High Court cited with approval the following passage from Mayne and McGregor on Damages , 12 th ed (1961) Sweet & Maxwell.
"[Exemplary damages] can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights."
197In my opinion, the conduct of DoCS in the present matter did not call for an award of damages on either of these bases. The trial judge did not fall into error in this regard.
198I proposed that the appeal be dismissed with no order as to costs.
[10]
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Decision last updated: 21 December 2011
medication refusal
Of perhaps greater concern in the emergence of self injurious behaviours and refusal to eat. Joanne has had many unexplained bruises on her arms and legs. She was recently witnessed by staff to inflict these injuries on herself. Joanne has also had recent periods of refusing to eat. She keeps a record of her weight loss and is aware that she has reduced her weight from 100kgs to 73kgs since admission. Joanne has also been observed to be adopting the rituals of other clients, at times engaging in behaviours such as rocking. She appears to be increasing her behavioural repertoire with a number of behaviours learnt from her environment.
Unit two has a large number of clients functioning in the severe level of intellectual disability. There are only three other clients in the unit in the mild range and thus there is no appropriate peer group for Joanne to relate too [sic]. She is very young to be placed in a large residential centre and this experience can only be detrimental to her existing community living skills. It seems incredible that the department is unable to find more appropriate placement for this young woman. We urge you to push the application for special funding to the directorate. It is inconceivable that [there] is no more appropriate placement for this young woman.
Yours sincerely,
Jeannette Deaves, RN, A/Nusing Unit Manager
Michelle Brown, RN, Case Manager
Catherine Adams, Senior Programme Co-ordinator
59On 7 January 1997, Mr McEvoy wrote to Mr Graeme Smith, the Director of Programming of the Department of Ageing and Disability, asking the Department to review the application that had been made for recurrent funding on Ms Darcy's behalf. The letter is under the signature of Mr Le Breton, the Director of the Office of the Public Guardian. I shall set out the terms of the letter in full (Blue, 85 - 86):-
Dear Graeme,
Re: Joanne Darcy
DOB 27/05/77
The Public Guardian is writing to endorse and support the submission for recurrent funding for Ms Darcy originally forwarded to the Ageing and Disability Department in April, 1996.
As you are no doubt aware, the Public Guardian has been Ms Darcy's allocated guardian since the 28 March, 1996. The Public Guardian strongly supports the submission presented to your department by the Department of Community Services - Mid North Coast Area Office. The Public Guardian recognises the degree of correspondence between the Department of Community Services and Ageing and Disability regarding Ms Darcy's case, and the Public Guardian has actively been involved in, and monitored the progress of this case.
The Public Guardian would like to endorse the concerns expressed by the Department of Community Services in relation to Ms Darcy's case. The Public Guardian would also like to highlight the deterioration which has occurred in Ms Darcy's circumstances since the decision not to fund and this places her at increased risk.
Ms Darcy is still residing at Kanangra Centre (as stated in the letter of the 27/6/97 from DoCS, Mid North Coast Area Office). Even though due for discharge on 22/8/96, the resources and support services needed to support Ms Darcy in the community were not available and her discharge has therefore been postponed indefinitely,
the Public Guardian endorses the risks and serious concerns for Ms Darcy remaining in Kanangra Centre indefinitely as detailed in the report enclosed from the Professional Team at Kanangra Centre,
these reports have been confirmed on subsequent visits by Public Guardian representatives to Kanangra Centre, in discussions with Ms Darcy, the Professionals at Kanangra and through attendance at the Individual Support Plan Meeting for Ms Darcy (attended by Kanangra Staff, representatives from DoCS - Mid North Coast Area Office and the Public Guardian),
agencies involved in supporting Ms Darcy have established a number of initiatives which are in place in recognition that Ms Darcy is inappropriately placed at Kanangra, such as, making a referral for her to be considered for group home placement (unlikely unless accompanied by funding).
Given the very serious concerns for Ms Darcy's well being, the Public Guardian would request a further formal review of the submission for funding. The Public Guardian requests to be advised of the outcome of this review and the criteria for the decision.
Yours Sincerely,
John Le Breton,
Director
60Mr McEvoy then sent a fax to Mss Deane, Brown and Adams. He said (Blue, 87):-
Hi Jeanette, Michelle and Catherine
Just a brief note to let you know I have written to ADD (sorry about the delay) enclosing your support letter (thanks heaps for your letter, it was extremely well written).
I am enclosing a copy of the letter I wrote to ADD yesterday (even though it is signed by John Le Breton as a matter of protocol).
Anyway, there it is. I'll see or speak with you closer to the hearing.
Take care,
Cheers
Patrick
61On 23 March 1997, Mr Smith responded on behalf of the Department to the Director of the Office of the Public Guardian, stating (Blue, 90):-
Thank you for your recent letter supporting the reconsideration of a submission for recurrent funding for Ms Joanne Darcy. This submission was originally forwarded to the Ageing and Disability Department by the Mid-North Coast Area Office, Department of Community Services, in April 1996.
At present, there is no recurrent funding available under the Disability Services Programme. Further, there has been no indication that additional recurrent funding will be forthcoming in the 1996/1997 financial year.
This advice was included in the Ageing and Disability Department's response to the Mid-North Coast Area Office dated 26 June 1996, in which the Department stated that due to the lack of availability of recurrent funding, it could not provide for Ms Darcy's long term support needs. Unfortunately, the position in relation to recurrent funding still stands.
62The letter concluded with the rejection of an alternative application that had been made for a one off funding for the provision of 6-month accommodation to enable Ms Darcy to live in the community independently. Mr Smith stated that the Department had reconsidered this part of the submission but concluded that it would be "inappropriate" to provide one-off funding for the temporary support of Ms Darcy. His letter, in this regard, concludes:-
Although Ms Darcy's place at Kanangra does not constitute the most appropriate placement, it is nevertheless in accordance with the court order that Ms Darcy reside at a residence designated by the Department of Community Services. The Ageing and Disability Department would view this option as preferable and less disruptive in comparison to placing Ms Darcy in the community for a 6 month period without the capacity to continue those funding arrangements in the future.
63It might be observed that this paragraph of the letter appears to misunderstand the order made by the Magistrate in the Local Court in June 1996. It may be a reference (also misunderstood) to the orders which were made by the Magistrate in dismissing the outstanding charges against Ms Darcy in December 1996. The actual terms of the order made on 19 December 1996 were, in each case:-
Charge dismissed. Defendant discharged upon condition that she accept supervision and treatment available to her from DoCS.
(The order, it will be observed, did not purport to continue Ms Darcy's placement at Kanangra).
64The attitude of the Public Guardian in early 1997 is best seen from a report it made to the Guardianship Board dated 10 March 1997 (Blue, 92 - 94). This report is signed by both Patrick McEvoy and Mr Ramos-Conna. Under the heading, "Temporary Accommodation", there is a note:-
Ms Darcy was ordered to Kanangra Centre by the Local Magistrate in Port Macquarie. Apparently, Ms Darcy will only succeed in being returned to the community if accompanied by a funding package and maximum community support to manage behavioural issues.
Accommodation
The report notes:-
The Public Guardian consented to Ms Darcy returning home to Port Macquarie for Christmas 1996, which was a positive experience for Ms Darcy and Ms Springer (her mother).
The original period which Ms Darcy was ordered to spend at Kanangra Centre was 2 months, this period commenced in late June 1996. The Department of Community Services claims that Ms Darcy cannot return to the community without a supported accommodation package because of the high level of support which needs to be put in place. The Department of Community Services have submitted a submission for a one-off accommodation and support package from the Ageing and Disability Department which was initially unsuccessful. Following Ms Darcy's admission to Kanangra, it was felt that her circumstances had deteriorated, and thus the Public Guardian and Kanangra Centre requested the submission be reviewed, this was again unsuccessful (see enclosed letter from ADD received on 3 March 1997).
65The Report continues:-
The Public Guardian realises that Kanangra is not an appropriate accommodation setting for a range of reasons outlined in the copies of reports submitted with this report. Thus one of the Public Guardian's priorities is to advocate for Ms Darcy to be placed in a more appropriate setting which is not institutional... The Public Guardian has, and will continue, to advocate for Ms Darcy to be returned to the community, with the appropriate support services in place... The Public Guardian perceives its role as continuing to liaise with the appropriate services to ensure this occurs as soon as possible. (My emphasis)
Currently, Ms Bate... is in the early stages of organising for Ms Darcy to have regular 'at home' respite (with her mother in Port Macquarie) following a successful trial during the Christmas period.
(I interpolate to observe that the question of "advocacy" is central to an understanding of what it was the public Guardian undertook to do, and what in fact it did on the appellant's behalf over the next few years. This understanding, as will be seen, is critical on the issue of the Public Guardian's consent.)
66On 10 March 1997, the Guardianship Board met and determined to adjourn the matter for 2 months so that Mr Ian Mussatt (Area Manager, Department of Community Services) and Mr Graeme Smith be asked to attend the next hearing of the review. The Board noted (Blue, 97):-
Whilst Ms Darcy is well cared for at Kanangra Centre it is highly inappropriate that she remain there. It was genuinely believed by all persons present that if Joanne continues to reside at Kanangra Centre she will lose some of her domestic skills and her behaviour may well deteriorate. All persons were in agreement that Ms Darcy needs to return to the local community as it is clearly inappropriate and against Department of Community Services policy that persons remain institutionalised, especially as Ms Darcy has never been institutionalised in her life...
67It should be noted that a number of the people from Kanangra, including Sister Neaves, the Case Manager and the Activities Training Centre manager were present at the Board meeting and supported the recommendations that led to the adjournment of the application.
68As it happened, neither Mr Mussatt nor Mr Smith were able to attend the next Guardianship Board meeting on 3 June 1997. Mr Mussatt (on behalf of DoCS) wrote a letter to Mr Ramos-Conna on 16 May 1997 explaining why it was he could not attend the meeting. There were a number of topics in Mr Mussatt's letter which do not require repetition. Generally, however, he stated (Blue, 98):-
As I explained in our telephone conversation, Jo is welcome to return to Port Macquarie when recurrent funding is available to support her needs. The Department operates a supported accommodation service... and we would envisage Jo being supported by that service, which commenced as a result of the "300" supported accommodation program. Without funding, Jo's needs for support cannot be met. I understand the Department of Housing will allocate Jo accommodation when her return is imminent... I appreciate the concerns you raise, however, our past experience with Jo demands certainty for her support before she is able to be provided by [sic] Department of Community Services support.
69On 3 June 1997, the Guardianship Board made orders continuing the Guardianship in the same terms as the orders that had been made in 1996. In its reasons for decision (Blue, 102), the Board stated:-
The Board reappointed the Public Guardian as Ms Darcy's guardian for a period of 12 months to make decisions on her behalf about her accommodation, healthcare, medical and dental treatment and services as set out in the Board's order and subject to the conditions and recommendations contained therein.
70In the body of its report, the Board noted that although Mr Smith did not attend the hearing, he had taken the trouble to return the Board's call, and had discussed the matter by telephone. The various discussions were described in these terms (Blue, 105):-
[Mr Smith] stated that all recurrent funds are committed and expressed his unwillingness to advise the Minister that one-off funding should be made available in circumstances where there is no capacity to provide a permanent arrangement when the one-off funding runs out. He said that he would be happy to look at another submission but he was clearly of the view that there was simply no extra money to be found. Mr Smith suggested that the Department of Community Services may be able to fund Ms Darcy's return to Port Macquarie by reallocating funds from elsewhere within the system.
Mr Ramos-Conna queried the responsibility of both Departments to support Ms Darcy because she is a former Part IX Ward. Ms Durrington said that they could not support her (other than in the Kanangra Centre) without additional funds and Mr Smith said that his Department did not have a direct responsibility to former Part IX Wards, but rather it had a responsibility to fund the Department of Community Services.
While the Board was sympathetic to the resource constraints imposed on both Departments concerned, it agreed with all present that Ms Darcy's continued detention against her will at the Kanangra Centre is inappropriate, unfair and potentially tragic in terms of its long term effect on her ability to lead as normal a life as possible within the community. The Board was strongly of the view that Ms Darcy's welfare and interest can only be promoted by her immediate return to her home town with appropriate support.
The Board was impressed with Mr Ramos-Conna's commitment to achieving this end. It was also impressed with the efforts made by the staff at the Kanangra Centre to provide Ms Darcy with the best possible service while she is at their centre while continuing to advocate for her return to a more appropriate living situation.
71On 3 June 1997, following this meeting, Ms Learne Durrington, Area Manager for DoCS on the Mid-North Coast, wrote to Mr Ramos-Conna. In her letter, she wrote (Blue, 107):-
Dear Mr Ramos-Conna
Following the Guardianship Board hearing in relation to Joanne Darcy, I would like to clarify the tasks which were agreed to be undertaken by this Department.
Clarity of responsibility regarding Ex Part IX Wards for both the Department of Community Services and Ageing and Disability Department.
Department of Community Services to contact Department of Social Security in regard to the Disability Services Panel and her eligibility or otherwise for services developed by that panel.
Department of Community Services Community Worker to forward a copy of the application for Holiday Respite at Seabreezes, to Office of Public Guardian.
Community Worker, Alison Bate to contact Joanne Darcy at Kanangra as soon as practical on her return to duties, and also Cheryl Harris, Key Worker.
Contact to be made with Ageing and Disability Department to once again discuss the possibility of funding for a Key Worker. Outcomes of this discussion will determine preparation, or otherwise of a submission.
An exit plan for Joanne will be considered following discussion with Departments of Social Security and Ageing and Disability.
I hope this list of tasks is an accurate reflection of what was agreed.
Any information you hold in relation to possible services for Joanne would be usefully referred to the Community Worker, Alison Bate. Finally, if you hold information regarding the implementation of Post School Options services which may clarify information held at Area Office, I would appreciate if you could forward this to the Assistant Manager (Disability), Yvonne Couper.
Not unlike yourself we are committed to ensuring appropriate support and services for Ms Darcy and appreciate your assistance in this regard.
Yours sincerely
Learne Durrington
Area Manager
Mid North Coast Area
cc. Community Worker, Alison Bate
Key Worker, Kanangra, Cherryl Harris
72Mr Ramos-Conna replied on 16 June 1997, as follows (Blue, 109):-
In response to your letter regarding issues discussed at the recent Guardianship Board hearing, the Public Guardian was seeking from the Department a positive response to enable Ms Darcy to return immediately to live at Port Macquarie.
To this effect, the Public Guardian was trying to explore with you a more lateral approach to resolve the issue, which the Department has in providing services to Ms Darcy.
The Public Guardian therefore was requested that as Ms Darcy has been at Kanangra since 20 June 1996 and by all accounts has made significant changes a total reassessment was needed to be done by the Department. The Public Guardian was hoping that by looking at today's achievements made by Ms Darcy that the old experiences would not be given as much weight as they have been...
The Public Guardian would request that 'respite' be made available immediately, if no immediate long term accommodation is available, by way of using the Department's own group homes or Department of Housing emergency stock, or by way of a private holiday self-contained unit being rented out by the Department for the interim.
The public Guardian requests that a detailed management plan be put to him in the next 14 days outlining the date of Ms Darcy's exit from Kanangra, for consideration and possible consent.
73It will be seen from this correspondence that Mr Ramos-Conna and Ms Durrington had come to a realisation that the argument previously advanced in order to have Ms Darcy relocated, namely that Ms Darcy's condition was deteriorating at Kanangra, had not been successful. Therefore a change of approach was tacitly agreed, namely that an assessment should be made to enable a report to be put forward that she had in fact made substantial improvements in her behaviour whilst at Kanangra. It was hoped that a favourable report might be seen as a positive argument to enable Ms Darcy to be returned to community living.
74Unfortunately, events at Kanangra undermined this approach. In the interim, Ms Darcy had been allowed to stay in Koala Cottage for a 3 month period. If successful, the trial would have demonstrated that her behavioural problems had significantly lessened, and this would have paved the way for group living in the community. Unfortunately, the trial failed badly. A report in evidence (Blue, 112, 113) demonstrates that Ms Darcy's behaviour at Koala Cottage was anything but satisfactory and had caused considerable distress to other residents and staff. On 30 July 1997, Sister Cheryl Harris sent a fax to Mr Ramos-Conna in these terms (Blue, 111):-
Dear James,
I have rung several times and left messages so I could update you personally on Joanne. Joanne's 3 month trial is completed and we are recommending that she be transferred back to Unit 2.
I am available to discuss the reasons with you any time over the next 3 days.
Yours sincerely,
Cheryl Harris CNS
75In August 1997, as I earlier indicated, Mr Ramos-Conna relinquished his role in relation to Ms Darcy and the position was then taken over by Patricia Davidson, Senior Guardian.
76In the latter half of 1997, and into the early part of 1998, there were continuing efforts to find some type of accommodation suitable for Ms Darcy outside Kanangra. One opportunity that arose related to the Sherwood Road group home in which a vacancy had arisen. At that time, the process for filing a vacancy within the three group homes was determined by the Area Placement Committee. This comprised five members including the Chairperson who was the person appointed by the Minister. When a vacancy arose, all community workers in the area were notified to allow them the opportunity to forward applications for individuals in need of accommodation. Ms Darcy was an applicant for this particular vacancy, but in February 1998 a decision was made awarding the vacancy to another applicant. The correspondence shows that positions such as this arose rarely and that they were sought after by many persons in need of accommodation. It is clear that Ms Darcy's history of behavioural problems did not assist her application.
77On 16 March 1998, Ms Davidson, in her capacity as Senior Guardian for Ms Darcy, wrote a forceful letter to Learne Durrington, in which she complained about the fact that the vacancy had gone elsewhere and that Ms Darcy remained at Kanangra. Her letter (in part) states (Blue, 114):-
Ms Darcy has been accommodated at Kanangra against her will since June 1996. Ms Darcy was initially placed in institutional care for a 2 months respite period. Her date of discharge was 22 August 1996, Joanne remains in Kanangra against her and her family's wishes, no new contract has been entered into by Port Macquarie DCS and Kanangra. No new consent has been sought for this placement from the Director-General and the Public Guardian has not consented to this extended stay ... Staff at Kanangra have also endorsed the need for Ms Darcy to return to the community. Joanne is not well placed at Kanangra, her behaviour has been stabilised for many years, this can be endorsed by the fact that she regularly travels independently... without any incidents and information from the Kanangra unit in which she resides. [emphasis added]
(This appears to have been the first mention in correspondence to support that there was an absence of "consent".)
78Ms Davidson, in considerable detail, criticised the results of the allocation of the vacancy at the Sherwood Group Home. She reiterated that "Ms Darcy's needs cannot be questioned, she is held in a major institution against her will, without permission or consent since 22 August 1996". [emphasis added]
79The letter concludes:-
The Public Guardian after this last unsuccessful application for Ms Darcy to regain a placement in Port Macquarie does not accept Port Macquarie's DCS explanation that Ms Darcy has not returned to Port Macquarie due to funding, and now requests DCS to follow DCS policy and develop a concrete, action structured, written plan for Ms Darcy to return to the community within a 12 week timeframe. The Public Guardian requests that the Director-General be advised and the matter be referred to the Commissioner for Community Services.
80On 3 April 1998, Ms Durrington replied to Ms Davidson's letter (Blue, 117 - 121). First, Mr Durrington explained in considerable detail the system of allocation where a vacancy has occurred. She detailed the particular process that had been followed in the Sherwood Road allocation and pointed out the basis on which the successful applicant had been preferred to Ms Darcy.
81In relation to the more general allegations made in Ms Davidson's letter, Ms Durrington made a number of points in reply. These included:
The circumstances in which Ms Darcy had been sent to Kanangra by the Local Court, and the reason for this.
The fact that the Director-General had approved and continued to approve Ms Darcy's residence at Kanangra.
A query as to whether Ms Darcy's behaviour had in fact stabilised at Kanangra, including her placement back into Unit 2 after an unsatisfactory period at Koala Cottage.
An assertion that the filling of the Sherwood Rd vacancy was not a rejection of Ms Darcy by DoCS but specifically occurred as a result of the Placement Committee's decision.
A statement that what was required for Ms Darcy was an individualised accommodation support package to meet her complex support needs. In other words, a statement that group living would probably not be likely to work.
An identification that the central issue was the provision of financial resources necessary to meet Ms Darcy's support needs. In this context, the letter identified the previous applications that had been made to ADD for funding support and that they had been so far unsuccessful.
82Ms Durrington, once again in considerable detail, pointed out to Ms Davidson the difficulties DoCS had experienced in obtaining the necessary funding from the Department of Ageing and Disability. She deplored the limited financial resources available to DoCS, in particular in the area of Port Macquarie/Taree. The letter stated (Blue, 121):-
In conclusion, I would like to state that I and other DCS staff share your concerns about the continued placement of Joanne Darcy in Kanangra, and the urgent need to return her to Port Macquarie. However, the current placement was one of last resort in lieu of remand and possible sentence to Mulawa Prison by the presiding Magistrate of Port Macquarie Local Court.
This was in the context where a secure placement was necessary to protect not only Ms Darcy's welfare but equally the safety of members of the community.
Whilst it would appear that Ms Darcy's behaviour has significantly improved both within Kanangra and on her short visits to Port Macquarie, it would be negligent to allow her to return home without the appropriate care and support necessary to prevent her entering the criminal justice system.
Such support is contingent upon an external resource enhancement (that is an individual tailored accommodation support package appropriate to her needs) funded by the Department of Ageing and Disability.
83Ms Davidson then wrote directly to Mr Graeme Smith, the Director of the Department. In her letter of 5 May 1998, she strongly advocated for funding to be made available for Ms Darcy to enable her to live with support at Port Macquarie. She said (Blue, 123):-
Ms Darcy, as stated earlier, has been kept at Kanangra against her wishes since June 1996. She entered this isolated institution as a 20 year old, has spent her 21 st there and is quickly progressing to her 25 th . In previous correspondence received by the Public Guardian, ADD has stated that Ms Darcy was placed at Kanangra in accordance with a court order, this order did not place Ms Darcy into Kanangra but discharged her to attend at Kanangra, no time limit was set. The Public Guardian believes that this order could be responded to by Kanangra by the carrying out of assessments, this has occurred. The court order does not state that Ms Darcy reside at a residence designated by the Department of Community Services. The Public Guardian requests that ADD, by providing a support package to Ms Darcy, create the opportunity and services to allow her to participate in society and have a better quality of life as your goal states.
The confinement of Ms Darcy in this restricted environment will not cease unless some action is taken by all parties involved. The Public Guardian needs DCS and ADD to combine to provide support so that Ms Darcy can return to Port Macquarie. The Guardianship Tribunal has requested that the Public Guardian advocate strongly for Ms Darcy to return to Port Macquarie and the Public Guardian will continue this advocacy until such time as Ms Darcy returns to Port Macquarie.
84On 4 June 1998, Ms Durrington made a further submission for recurrent funds in regard to the provision of services for Ms Darcy. This submission was made directly to the manager of the Disability Services Program, Department of Ageing and Disability. Ms Durrington, on behalf of DoCS, said (Blue, 124):-
Ms Darcy has recently spent her 21 st birthday in Kanangra. The continuing placement in Kanangra is viewed as being inappropriate, not only by herself and her family, but moreover by staff of Kanangra, Mid-North Coast Area and the Office of the Public Guardian.
The letter asked the Department to favourably support an accommodation package for Ms Darcy to enable her to return to Port Macquarie without placing herself or other community members at undue risk.
85Ms Davidson provided a report for the next Guardianship Review meeting, scheduled for 15 June 1998. Her report, once again, referred to the historical situation as follows (Blue, 132):-
Ms Darcy currently resides in Unit 2. This accommodation continues to be against her and her family's wishes and without the consent of the Public Guardian... over the last 12 months the Public Guardian has communicated with Port Macquarie DCS... to seek accommodation for Ms Darcy in Port Macquarie.
86Ms Davidson noted the letter she had sent to Mr Smith requesting funding had not been answered.
87In the final section of her report, Ms Davidson said:-
The Public Guardian believes that Ms Darcy's needs are not being met by her continued institutionalisation. Ms Darcy has made great progress since she arrived at Kanangra, the reasons for this progress are many, but the most relevant are her maturity, the commitment of the staff at Kanangra and the ability of Ms Darcy to accept that she has no control over her environment.
88On 15 June 1998, the Guardianship Tribunal renewed the original orders for a period of 3 months. The reasons for this limitation centred upon the various advocacy and other applications that had been made to the Department. The Tribunal expressed its approval that the Department of Community Services had now appointed a senior practitioner, Ms Narelle Henry, to review Ms Darcy's placement. Ms Henry advised the Tribunal that the Department had a commitment to find a place for Ms Darcy in the Port Macquarie region but said the fundamental issue was one of resources (Blue, 139). Ms Darcy would require 24 hour support on a one-to-one basis but this service was not currently able to be provided by the Department. Ms Henry had recently put a support package to the Department of Ageing and Disability Services, but was yet to receive a response. She said that she was hopeful of the outcome and felt that, with the support of the Public Guardian in advocating for Ms Darcy, it was likely that the Department of Ageing and Disability Services would respond favourably to the request for appropriate supported accommodation. The Tribunal noted (Blue, 140):-
Ms Henry also noted that she had not been aware that 'consent' was required for placement. The Public Guardian had made it very clear that they did not consent to Mrs Darcy's placement at Kanangra. This Tribunal looks forward to this issue being clarified and a timetable for an exit plan established. [emphasis added]
89Following this meeting, Ms Davidson wrote a letter to the DoCS case manager Alison Bate dated 23 June 1998 (Blue, 141):-
Dear Alison,
As you know the Public Guardian was reappointed as Ms Darcy's guardian on 14 June 1998. The Public Guardian has been given the functions of Accommodation, Health Care, Medical and Dental Consents. The accommodation function means that it is a legal requirement that the Public Guardian consents to where Ms Darcy may reside. The Public Guardian has not previously consented to Ms Darcy residing at Kanangra and it is against the Public Guardian's policy to provide consent for a person under guardianship to reside in a major institution unless there is an exit plan in place, the Public Guardian understands that Narelle Henry is currently developing an exit plan. In view of this, the Public Guardian consents to Ms Darcy residing at Kanangra until Monday 17 August 1998.
90On 24 June 1998, Anna Kalnins, the manager of the Disability Services Program for the Department of Ageing and Disability wrote to Ms Davidson. In this letter, Ms Kalnins endeavoured to explain the difficulty of providing financial support for accommodation for Ms Darcy. The letter noted that all available vacancies within the current program had been allocated. However, the letter gave some encouragement. Ms Kalnins informed Ms Davidson that the Department of Ageing and Disability had recently received additional growth funds for the provision of disability crisis support and accommodation. Priorities for individual funding allocations were "currently being considered by the Department and DoCS" (Blue, 143).
91On 28 August 1998, Ms Davidson wrote to Ms Valerie Derks, the Acting Assistant Manager for DoCS in the Mid-North Coast area. It seems that Mr Davidson had been frustrated by the absence of a completed exit plan for Ms Darcy and in this letter, she pointed out that the consent given by DoCS on 23 June 1998 had now expired. She wrote (Blue 144 - 145):-
The exit plan that has been developed so that Ms Darcy can return to Port Macquarie has been received by the Public Guardian... the Public Guardian believes the plan should be achievable and not depend on resources that DoCS has no control over. In addition, the securing of funding from ADD could be a component of the plan, but an alternate way to secure Ms Darcy's return to the community must be provided otherwise the plan is not achievable and therefore cannot work in Ms Darcy's best interests...
The Public Guardian does not consent to Ms Darcy being accommodated at Kanangra and requests that arrangements be put in place for Ms Darcy to return to Port Macquarie with support within a 4 week period.
92On 29 September 1998, the Guardianship Tribunal renewed and varied its orders of 15 June 1998 in relation to Ms Darcy. The order continued guardianship for a period of 4 months from 29 September 1998. Otherwise it imposed the same conditions as in previous orders, with the exception, however, that the previous standard condition 6(b) was omitted (Blue, 136).
93In its reasons for decision, the Tribunal noted that the Public Guardian had advised that it was seeking a renewal of a current order for a reasonably short period "in order to maintain the momentum around executing an exit plan for Ms Darcy".
94It is necessary at this point to address the evidence given at trial by both Mr Ramos-Conna and Ms Davidson. This is particularly the case in relation to the issue of the Guardian's consent or otherwise to Ms Darcy residing at Kanangra. It is necessary first to draw a distinction between respite accommodation and permanent accommodation. The point is made in paragraphs 12 to 18 of Ms Davidson's affidavit dated 24 February 2010 (Blue, 193 - 194).
95In paragraph 12 of the affidavit, Ms Davidson, referred to the correspondence which she had written as the Senior Guardian. This, she said, was an attempt "to indicate that I was not consenting to Joanne being continued to be permanently placed at Kanangra Centre". The affidavit continues:-
Whilst Ms Darcy was housed at the Kanangra Centre and whilst I had the responsibility as her guardian I did not think that the Kanangra Centre was the most suitable or appropriate accommodation for her. It was evident to me that more suitable accommodation was required to be found for her. Based on my experience and my knowledge at the time, such suitable accommodation would have required 24 hour a day staffing, the expertise of a psychologist to write a behaviour management plan, and training of house management staff in order to implement such a plan. Money was needed to set up a house, whether such house was purchased outright or whether it was to be rented. Additionally, a vehicle needed to be purchased for the use of house staff in order to assist in the care of Ms Darcy (and possibly other residents). The house staff would be responsible for transporting Ms Darcy and other residents to medical appointments, as well as for any other required outings. In those days, funding was provided to individuals. Since then... it has moved away from individual funding to project or group type funding.
The Department of Community Services was required to put forward an exit plan in relation to Joanne Darcy. Funding was the major issue insofar as the care of Ms Darcy was concerned... however it was clear that there was no funding available to implement any such plan.
There was, in reality, no other place where Joanne could have been accommodated. If there were any suitable accommodation as an alternative to the Kanangra Centre, then I most certainly on behalf of the OPG would have provided consent for her to be accommodated in the more suitable placement.
(These last 2 paragraphs were originally admitted on a limited basis, namely as to the belief of the witness and to the time when he was responsible for her, although the trial Judge later broadened the basis of admissibility).
102In relation to the difficulties of funding, Mr Conna stated (paragraph 20 of his affidavit) that, at the time of trying to place Ms Darcy, there were over 200 persons with intellectual disabilities who required placement in suitable alternative accommodation to take them out of institutions as recommended by the Richmond Report. He referred to the correspondence he had written in 1997 to DoCS, trying to devise means of arranging for Ms Darcy's exit from Kanangra. As to this, he said:-
It has to be understood that the letters were written in the context of my undertaking advocacy on behalf of Ms Darcy. It was never in my contemplation or thought at that time or now that Ms Darcy was being held against her will or more importantly the will of her Public Guardian whilst at the Kanangra Centre . In essence the letters were written in the terms of which they were, as a means of my not merely trying to advocate on behalf of Ms Darcy, but also trying to achieve a result with the government departments involved by attempting to coerce them into some form of positive action in order to achieve the best possible end for her.
The Public Guardian was never in a position to remove Ms Darcy from the Kanangra Centre directly. The Public Guardian, whether myself or any other person appointed to look after Ms Darcy's interests, never at any stage had available suitable alternative accommodation for her to have been placed in. If there were suitable accommodation, then Ms Darcy would have been removed from Kanangra Centre. [emphasis added]
103In paragraph 23, Mr Conna expressed his personal opinion that "Ms Darcy would have been at a very high risk of finding herself incarcerated at Mulawa Women's Prison if she had been taken out of Kanangra Centre without suitable accommodation being available". In paragraph 24, he expressed the view that Kanangra was the most appropriate placement in the circumstances, even though it was not ideal. In paragraph 25, he said (again on a limited basis):-
When reading the documentation, being letters forwarded by myself and Patricia Davidson referred to previously, it must clearly be borne in mind that when reference is made to the fact that the OPG does not consent to Ms Darcy's being placed at the Kanangra Centre, this has to be read in terms that the OPG did not really approve of such placement, but was aware that there was no other more suitable placement where Ms Darcy could be housed. The use of the word "consent" should not be seen as a reference to the OPG not agreeing to Ms Darcy being at the Kanangra Centre. It is more in terms of the OPG did not approve of her being placed at the centre if more suitable accommodation could be found. No such alternative suitable accommodation was found.
104Mr Conna was cross-examined at length by Dr Birch SC. Two extracts from the cross-examination will suffice to give the flavour. At Black, 178, O - Z, the following appears:-
Question: And you would agree with me that she didn't come to be there as a result of any determination made by the OPG's office that she should go there. Do you agree?
Answer: I agree.
Question: And do you agree that the OPG's office did not consent to her going to Kanangra?
Answer: Yes.
Question: And indeed, they conveyed to DoCS that they did not consent to her going to Kanangra?
Answer: Yes.
Question: And you haven't, in your affidavit, identified a document or a point at which the Office of the Public Guardian made a determination that Joanne Darcy should reside at Kanangra. Do you agree?
Answer: I agree.
Question: And I want to suggest to you that that is because at no time did the Office of the Public Guardian make a determination that Joanne Darcy should reside at Kanangra?
Answer: As far as I'm concerned, when I had the letter, no.
(This was a reference to the letter from Patrick McEvoy dated 8 July 1996).
105The second extract appears at Black, 181, Q - Z:-
Question: In the period that you had responsibility for Joanne Darcy up to August 1997, her position, as you understood it, was that she had been taken to Kanangra in consequence of a court order... is that correct?
Answer: Correct.
Question: She had remained there in consequence of decisions made by DoCS. Is that correct?
Answer: Correct.
Question: There hadn't been a determination made by the Office of the Public Guardian as to where she should reside. Is that also correct?
Answer: When I had the matter, correct.
Question: In those circumstances, I wish to suggest to you that there was no proper sense in which the Public Guardian had consented to Joanne Darcy being at Kanangra?
Answer: Correct.
106In re-examination, Ms Norton asked questions on the same topic (Black, 182, N - Z):-
Question: The time you were her guardian, were you there when consent was sought for her to visit her mother in Port Macquarie?
Answer: Yes.
Question: Did the Public Guardian consent to that?
Answer: Yes.
Question: At the end of that, she returned to Kanangra?
Answer: Yes.
Question: Was that against the consent of the Public Guardian?
Answer: No.
Question: She went on other holidays. Consent was sought from the Public Guardian?
Answer: Yes.
Question: At the end she returned to Kanangra?
Answer: That's correct.
Question: That wasn't against the consent of the Public Guardian?
Answer: No.
Question: If there had been a proposal by DoCS to move her out of Kanangra and put her into a boarding house would that have required the consent of - during the period that you were the guardian?
Answer: Yes.
Question: Would that have required your consent?
Answer: Yes.
Question: Would you have given your consent to that?
Answer: No.
107And again at Black, 183, F - N, the following appears:-
Question: If there had been a plan by DoCS to move her out and put her into an individually housed - I think it was Department of Housing... public housing but with no care, would that have required your consent?
Answer: Yes.
Question: Would you have consented to it?
Answer: No.
Question: Would you have consented to anything less than moving her out into some kind of accommodation where she had 24 hours a day care?
Answer: Yes.
Question: What would you have consented to?
Answer: I would have consented to that.
Question: Sorry. The question was meant to be: would you have consented to moving her out to anything less than 24 hour care?
Answer: No. I would not have.
Question: Would it have to be care from trained staff?
Answer: Yes.
Question: During the time you were her guardian, was there any suggestion that there was any of that accommodation available?
Answer: There was no accommodation available.
Question: If it had been available would you have consented to her moving there?
Answer: Yes.
108I return now to complete the summary of events in 1998. As the Guardianship Tribunal meeting had noted in September 1998, DoCS had applied to ADD for recurrent funding in the order of $199,000 per annum to provide support for Ms Darcy to resume living in the community in a Department of Housing flat. This package was not funded by ADD, however, and the Public Guardian had been in discussions with staff of DoCS to consider a second option. This would have involved a "stepped exit" whereby Ms Darcy would first go to Newcastle, then later to Port Macquarie. Port Macquarie could not take her at that stage, because it was currently overspent in its budget.
109However, a very significant development occurred in the funding saga in December 1998. Ms Fay Lo Po, the Minister for Community Services, the Minister for Ageing, the Minister for Disability Services and Minister for Women, wrote to Ms Darcy. The letter informed her that the New South Wales government had provided ADD with new recurrent funds to assist persons with disabilities who had been identified "as urgently requiring accommodation and support services". Ms Lo Po informed Ms Darcy (Blue, 157):-
I am very pleased to inform you that I have now approved recurrent funding to assist in the provision of appropriate accommodation and support services to you.
110Despite this heartening news, it was apparent that the bureaucratic process required a number of further steps to be taken. Most important of all was the need for ADD to locate service providers who would be willing to provide the accommodation and support models recommended by DoCS for Ms Darcy. Ms Lo Po informed Ms Darcy that ADD had now called for expressions of interest from service providers.
111When the Tribunal reconsidered the position on 1 February 1999, it noted with approval the fact that recurrent funding was now available. It accepted that the current proposal was to find service providers initially in the Newcastle area, notwithstanding the preference of Ms Darcy and her family that she return to Port Macquarie. The transition from Kanangra, however, was unexpectedly delayed when the plan to move her to the Newcastle area failed. The Samaritan Foundation at Newcastle had been selected as the most appropriate service provider, but at the last minute the Samaritans withdrew their expression of interest in being the support provider. Regrettably, it was back to 'square one'.
112The events between mid 1999 and up to late December 2002 (when Ms Darcy was finally moved to a property in Wauchope) are described in considerable detail by the primary judge. There is no need for me to go to this detail. The slow and frustrating progress of the matter may be summarised by reference to the following events:-