Laxale by his tutor Johnson v Sydney Local Health District

Background

1. The background to this matter can be shortly stated. The plaintiff is currently 29 years old. He suffers from schizophrenia, and has a "mild" cognitive impairment (I am well familiar with the way in which that taxonomy is liable to be misunderstood). For almost three years now, he has been detained in the Concord Centre for Mental Health (the Centre), which is physically part of Concord Repatriation General Hospital (Concord Hospital), more specifically within the Kirkbride Unit. Various orders made under both State and Commonwealth statutory schemes - the Mental Health Act 2007 (NSW) (the MHA) and the Crimes Act 1914 (Cth) (the Act)- govern his detention. Last year, the plaintiff also become the subject of a guardianship order made by the NSW Civil and Administrative Tribunal. He appears through a tutor in these current proceedings.
2. On 18 October 2021, the plaintiff was first admitted to the Centre. On 5 November 2021, the Mental Health Review Tribunal (the MHRT) found that the plaintiff was a "mentally ill person", and an order was made that he be detained as an involuntary patient pursuant to s 35 of the MHA.
3. Separately, in the months prior to his admission, it had been alleged that the plaintiff committed the federal offence of using a carriage service to procure a person under 16 years to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code 1995 (Cth).
4. On 5 September 2022, a determination was made by the judge that the plaintiff was unfit to be tried for that offence. Separately, a prima facie case was established for that allegation, in accordance with the requirements of s 20B(3) of the Act: R v Laxale [2022] NSWDC 398.
5. On 4 November 2022, it was further determined that the plaintiff was unlikely to become fit within the next 12 months: R v Laxale (No.2) [2022] NSWDC 533. The plaintiff was found to be suffering from a mental illness, and that treatment for such an illness was available where the plaintiff was already detained, pursuant to the State order.
6. An order was made by the judge that: Pursuant to s 20BC(2) of the Crimes Act 1914 (Cth), Kurt Laxale is to continue to be detained in the Concord Centre for Mental Health (Kirkbride Unit) for a term of 1 year, 11 months and 14 days commencing 4 November 2022 and expiring 17 October 2024. (emphasis added)
7. It was explained by counsel for the plaintiff that, since the commencement of that order, the plaintiff has indeed been detained in the Kirkbride Unit, located within the Centre, itself within Concord Hospital. Indeed, due to the narrow way in which the order made by the judge has been interpreted, his scope of detention has been viewed as strictly within the four walls of that unit.
8. To put it another way: for the past 18 months (that is, until I made the first declaration by consent) the plaintiff has not been permitted any time outside at all.
9. I interpolate that, in my respectful opinion, that state of affairs would damage the mental health of a perfectly well person, let alone one suffering from the conditions that burden the plaintiff.
10. Finally, as to background, the precise details of how it was that that remarkable outcome came to occur, leading up to the hearing before me, and who is responsible for it, does not need to be recounted now. It may, of course, be highly relevant to other curial controversies, including as to the costs of this matter.

Aspects of legislative regime

1. In order to provide statutory context for the events sketched above, and to permit understanding of the remaining dispute between the parties, I need to set out a number of extracts from the Act. Division 6 - Unfitness to be tried 20B Consequences of preliminary finding that person unfit to be tried (1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial. (2) … (3) Where a court: (a) to which proceedings have been referred under subsection (1); or (b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences; finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned. (4) … (5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail. (6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence. (7) In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established: (a) the person may give evidence or make an unsworn statement; and (b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and (c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter. 20BA … 20BB … 20BC Persons found by a court not to be likely to be fit within 12 months (1) Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine: (a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and (b) if so - whether the person objects to being detained in a hospital. (2) Where a court has made a determination under subsection (1), the court must: (a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital - order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or (b) otherwise - order that the person be detained in a place other than a hospital, including a prison; for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (3) The Attorney‑General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section. (4) Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation. (5) Despite subsection (2), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (2), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. … 20BD Review by Attorney‑General (1) Where a court makes an order under subsection 20BC(2), the Attorney‑General must, at least once in each period of 6 months after the day the person is detained under the order, consider whether or not the person should be released from detention. (2) In considering whether the person should be released from detention the Attorney‑General: (a) must obtain and consider: (i) a report from a duly qualified psychiatrist or psychologist; and (ii) a report from another duly qualified medical practitioner; and (b) may obtain and consider such other reports as the Attorney‑General considers necessary; and (c) must take into account any representations made to the Attorney‑General by the person or on the person's behalf. 20BE Attorney‑General may order release (1) The Attorney‑General may, after considering under subsection 20BD(1) whether or not the person should be released from detention, order that the person be released from detention. (2) The Attorney‑General must not order a person's release from detention unless the Attorney‑General is satisfied that the person is not a threat or danger either to himself or herself or to the community. (3) An order: (a) must be in writing; and (b) remains in force for such period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention under subsection 20BC(2)) or for a period of 5 years, whichever is the lesser; and (c) is subject to such conditions (if any) as are specified in the order. (4) …
2. Separately, I set out - a little out of order - another provision of the Act, within an earlier Division, that was also the subject of submissions: Division 5 - Conditional release on parole or license … Subdivision C - State and territory laws providing for leave of absence, pre-release etc. 19AZD State and Territory laws providing for leave of absence, pre‑release etc. to apply to federal offenders (1) A law of a State or Territory providing for a State or Territory offender to be granted leave of absence from prison, including leave of absence granted by order of a court, applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory. (2) A law of a State or Territory providing for a State or Territory offender imprisoned in that State or Territory to be released: (a) up to 24 hours before the time at which his or her sentence would otherwise have ended; or (b) where the release day falls on a Saturday, a Sunday or a day which is a public holiday - on the last day before such a day which is not a Saturday, a Sunday or a public holiday; applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory. (3) A law of a State or Territory providing for a State or Territory offender to be released from prison under a pre‑release permit scheme (however called) that is prescribed for the purposes of this subsection, applies to a federal offender who is serving a sentence in that State or Territory, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme, as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.

Plaintiff's submissions

1. In a nutshell, the submission for the plaintiff was that, as a matter of statutory construction, he could be detained in a hospital whilst at the same time able to be away from the hospital grounds on supervised, medically approved "day leave".
2. I understood the thesis to be that the proposition that the order made by the judge commanded that the plaintiff could only be literally inside the Kirkbride Unit that is part of the Centre within Concord Hospital for a period of many months, without the ability to enjoy fresh air or sunshine on his face even for a moment, borders on the absurd.
3. In similar vein, the declaration made by me on an interim basis was said to be correct, but too limited in its scope, permitting as it does only that the plaintiff be outdoors under supervision within the grounds of the Centre, not those of the hospital as a whole nor beyond the grounds of the hospital in their entirety.
4. Finally, a contingent position was put forward, proposing the lesser form of the declaration that permits the plaintiff to be out and about on the hospital grounds, beyond the grounds of the Centre, but still within the bounds of the hospital itself.
5. The focus of the plaintiff was upon the meaning of "detained in a hospital" within s 20BC(2)(a), what I shall call the order-empowering provision.
6. It was said that, although the legislation requires the detention of the plaintiff, that should not be read to mean that he is never to leave the interior of the four walls of the specified hospital. Rather, the provision in question, and the order made pursuant to it, encompass forms of restrained liberty whereby the plaintiff is to be "anchored to the hospital" (hearing transcript page 8 line 40; hereafter, HT 8.40).
7. In other words, there had never been a basis to limit the parameters of the "hospital" in which the plaintiff was to be detained to merely the interior of a building or buildings, to the exclusion of all parts of the grounds.
8. Furthermore, whilst accepting that there is obviously a question of degree about the point beyond which forms of conditional liberty cannot be sensibly characterised as being detained in a hospital, the second declaration sought amply fits that description, bearing in mind its medical strictures, and its feature of constant supervision.
9. It was said that one could reflect usefully on the rigour of the different concept of imprisonment, and its obvious punitive purpose. Here, by contrast, a person not proven to have committed a criminal offence is detained in a hospital. The point was that a provision pertaining to that detention should be interpreted therapeutically, not punitively (HT 10ff).
10. Relatedly, it was accepted that there is neither an explicit regime within the Act that permits day release and the like to persons detained pursuant to such an order. Nor is there a provision analogous to s 19AZD, which "picks up" any local State provision that explicitly permits such flexibility to persons found to be unfit under the New South Wales regime in that regard.
11. But that silence on the part of the Commonwealth Parliament was relied upon by the plaintiff: it was said that that lacuna argues in favour of the implicit flexibility of what is envisaged by the order-empowering provision, not its rigidity.
12. It was said that provisions such as s 20BC(3) and (4), and s 20BD and s 20BE, are "external" to the question of what detention in a hospital encompasses. That is because they empower alteration of the place of detention, or revocation of the detention itself. But they tell one nothing of the "internal" question of what that statutory concept should be interpreted to mean.
13. A further submission was that the Commonwealth regime does not operate in a vacuum. As a matter of concurrence of orders (as here), "picking up" of certain provisions, and shared use of resources such as hospitals and prisons (as to the former, again as here), they work together. The State regime possesses significant flexibility. It would be odd indeed, the submission went, to interpret a significant Commonwealth order-empowering provision rigidly, in that legal and factual context.
14. The point was made that this regime of detention is founded on nothing more than a prima facie case. That is in notable contrast to the State regime, whereby, at a special hearing, "guilt" must be established to the criminal standard. For that reason, any reading of the order-empowering provision said to give weight to a purpose of punishment must be seriously doubted, at the least.
15. The statutory history of the Division under consideration was also relied upon. It was said that weeks before its introduction into the Commonwealth Parliament, in the decision of Graham v State of New South Wales [1989] NSWCA 89, the NSW Court of Appeal, in a broadly analogous context, had (by majority) interpreted a provision explicitly far stricter than this in a flexible way.
16. In other words, the point was made that the Commonwealth Parliament must be taken to have understood the approach of that Court to this broad issue. And yet, that Commonwealth Parliament had created an order-empowering provision much less strict than that under consideration in Graham, well knowing that the State provision had been interpreted flexibly. In other words, as a matter of statutory interpretation, one can infer that the objective intention of the Commonwealth Parliament was that this concept admits of flexibility as well.
17. That case was also relied upon for the proposition that, speaking generally, the idea of detention in a therapeutic context must be attended with appropriate flexibility.
18. Finally, patently the Commonwealth Parliament said nothing about what precisely a person being "detained in a hospital" is to entail. But that makes perfect sense: the precise metes and bounds are to be left to the professional judgement of treating doctors, no doubt building in a margin for error, to ensure that the person can always be characterised as being detained in a broad sense.
19. As I have explained, the "fallback" position of the plaintiff was as follows. If I were not comfortable with supervised leave beyond the grounds of the hospital, both the order-empowering provision and the order itself surely permit the plaintiff to be subject to supervised access to the grounds of Concord Hospital as a whole. That goes well beyond the current declaration made by consent. Indeed, the point was made that the consent of the third defendant to the already made declaration is itself an implicit acceptance that there is inflexibility in neither the order-empowering provision nor the order itself.

Position of the second defendant

1. The Health District accepted that it would be more beneficial for the plaintiff to continue his detention in the hospital, and to be permitted temporary supervised leave beyond the grounds for the purposes of treatment (HT 36).
2. It also accepted that, on the proper construction of s 20BC(2)(a), an order that a person continue to be "detained" in a hospital does not necessarily prevent the person from having supervised access to areas outside the hospital.
3. In short, the Health District consented to the interim declaration, contended for the greater declaration, but made clear that, in light of the controversary that had arisen, its officers sought the protection of a declaration from this Court before taking any expansive step.

Position of the third defendant

1. Counsel for the third defendant made the following points.
2. Submissions to the contrary of the plaintiff were being made by him so that the Court could be fully informed.
3. No authority has been able to be found about the question of the meaning of the statutory phrase (a position confirmed by the other parties). It was explained that, in truth, very few such orders are made pursuant to the Commonwealth regime.
4. It was said that the specificity of the order, speaking as it does not just of the Centre within Concord Hospital, but indeed of the Kirkbride Unit within that Centre, must have work to do.
5. It was said that the purpose of the Division as a whole is surely not just therapeutic; it must also extend to protection, of the community and of the plaintiff himself. That argues if anything for strictness, not flexibility.
6. It was accepted that "perhaps punishment is the wrong description of the term" (HT 41.47). But it was certainly said to be a different regime, with different purposes, from that of the MHA.
7. It was said that the plaintiff by no means is a federal offender, with the result that there is no question of s 19AZD permitting anything like day release. And the same would apply, if he happened to be detained in a prison, not a hospital, having been found unfit with regard to a Commonwealth offence.
8. The fundamental proposition was that the plaintiff is simply seeking to read words into this Commonwealth provision that are simply not there. And one can infer that that omission is a deliberate choice on the part of the Commonwealth Parliament.
9. And the point was made that, if Parliament had wished to "pick up" any of the flexibility of the State regime, it could very readily have done so.
10. The result of acceptance of the proposition of the plaintiff would be, in a practical sense, that treating doctors would determine what constitutes detention in a hospital. That cannot reflect the objective intention of Parliament.
11. It was said that one should not think of this regime as a rigid one. Rather, it is one that has advisedly chosen which decision-makers within the regime have the ability to alter the terms of the detention (HT 45.19ff).
12. At the hearing, in accordance with the subsequent assent to the interim declaration, it was said that the third defendant did not contend that the order meant that the plaintiff must always be indoors.
13. It was conceded that the plaintiff "for a long time" had sought a variation of the order pursuant to s 20BC(3) of the Act, without response from the third defendant (HT 52.05).
14. A little later, it was accepted that the plaintiff could indeed be outdoors, in accordance with the interim declaration set out above, but no further, and certainly not beyond the grounds of Concord Hospital.
15. In answer to the submission of the plaintiff about Graham, it was said that the State legislation there construed spoke of "care or treatment" of the subject person. That phrase does not appear here, an important point of distinction regarding the purpose of the two different forms of detention (HT 58.26).
16. Secondly, the plaintiff in Graham was actually acquitted, albeit on the grounds of mental illness. That is not the case here, a second point of distinction.
17. In summary: I understood the submission to be that, in light of the legislative choices made by the Commonwealth Parliament, including by way of omission; the way in which the order actually made is phrased; and giving due deference to the differing purposes of the regime, I would not go further than the limited declaration already made by consent.

Determination

1. Resolving those contentions, I am well satisfied that the second declaration should be made in its entirety, for the following reasons.
2. What is being analysed is a provision pertaining to persons who have been found to be unfit to stand trial, who have not been convicted of an offence, whose "guilt" has not been proven to the criminal standard, and who are being held in a medical facility because of their state of mind. Read in context, and reflecting on the purpose of such a regime, the order-empowering provision must be read broadly, and flexibly.
3. Relatedly, that detention is founded on a mere prima facie case, a concept notorious at common law, and defined in the Act, at a very low level of satisfaction. In my respectful opinion, quite apart from any possible constitutional considerations, punishment (and analogous concepts) have either a negligible role or no role at all to play here.
4. The concept of detention in a hospital cannot mean only within the interior portions of such a building, any more than an order for imprisonment of a convicted offender means that that person must only be literally inside a prison building, as opposed to (for example) within a prison yard, or upon an outdoor basketball court within the surrounding walls of the prison. And yet, for some reason or other, that is precisely the form of detention that a man suffering from a severe and chronic mental illness endured for 18 months.
5. Once one accepts - as the third defendant does - that a measure of flexibility must exist within the preposition "in" within the order-empowering provision and the order itself, then the question becomes one of degree.
6. To expand on that: in my respectful opinion, the acceptance by the third defendant that the plaintiff could be supervised in the grounds not just of the Unit, but of the Centre as well, but assertedly could not be out and about on the grounds of Concord Hospital or beyond, despite the terms of the order actually made - which in one view, seemingly acted upon in the past, confine the plaintiff to the interior of the presumably quite small Unit - inherently demonstrates the following. There is a question of degree to be considered here, not hard and fast boundaries or borders.
7. Separately, the relationship between the handing down of the judgment in Graham and the introduction of this legislation is important, in my opinion. The Commonwealth Parliament must be taken to have appreciated that the Court of Appeal of this State had flexibly read a provision much stricter than the order-empowering provision. And yet, that Parliament was content to express itself in the way that it has. In other words, I accept the submission for the plaintiff that the legislative history favours flexibility.
8. Relatedly, it is true that the position of the plaintiff and the regime in Graham was not otherwise on all fours with those here. But on one view, in Graham, greater rigidity could have been called for: after all, having been found not guilty on the grounds of mental illness of murder, the plaintiff in that case had implicitly been proven beyond reasonable doubt to have committed the physical elements of homicide. Here, in contrast, nothing has been proven, even on the civil standard, against the plaintiff.
9. As I have shown, each contending party prayed in aid the absence of an explicit regime in the Act that either directly (by appearing in the Act itself) or indirectly (by "picking up" a State provision) permits the flexibility for which the plaintiff contends. But, in the context that I set out in the first paragraph of this determination, on balance I accept the submission for the plaintiff that that argues for flexibility, not against it.
10. And I accept that, for the time being, that leaves the way that the plaintiff is to be detained to the good sense and professional judgement of his treating doctors. That, I agree, imports a degree of amorphousness into the regime. On the other hand, that is hardly surprising: after all, the Division says nothing at all about how a person in the position of the plaintiff is to be treated during their period of detention. In its entirety, all of that is already left to the good sense of treating doctors. That context suggests to me that reasonable flexibility is not to be thought of as inherently adverse.
11. In short: in my opinion, the regime of medically approved, directly supervised, release, proposed to extend beyond the grounds of the hospital as a whole, amply falls within the concept of the plaintiff being "detained in a hospital" properly construed.
12. Contingently, if for some reason my analysis above pertaining to making the declaration in its entirety is mistaken, I am confident that, at the least, the ancillary position of the plaintiff is correct: there is no legal impediment to him being out and about on the grounds of Concord Hospital as a whole, under medically appropriate supervision. Because it is merely a question of degree, however, based upon factual considerations about compliance with the concept of "detention", my acceptance of the contingent thesis of the plaintiff does not require further elaboration.
13. Finally as to the declaration, I have taken care to avoid the error spoken of in Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA 224, whereby a declaration, even if conceptually correct, is wrongfully broad, and apt to be interpreted as declaring the law in diverse circumstances that have not been considered by the judicial officer making the declaration. But I have acted upon the assurance of senior counsel for the plaintiff that this tightly drawn declaration does not commit that error, an assurance not contradicted by counsel for either defendant.
14. Overarchingly, responsibility for the deplorable turn of events whereby a schizophrenic, intellectually disabled man was kept indoors, denied fresh air and direct sunshine for 18 months, seemed to remain contested at the conclusion of the hearing before me. As I have said, resolution of the question of that responsibility, founded as it must be on a detailed analysis of events in the past, is not required in this litigation, at least at this stage.
15. In short, I am well satisfied that the second declaration sought by the plaintiff should be made in its entirety.

Costs

1. It was agreed at the hearing that costs could not sensibly be discussed contingently at that stage.
2. I invite the parties to frame and file costs orders by consent that are in accordance with this judgment. For logistical reasons, that process must either succeed or fail within 48 hours from the delivery of this judgment.
3. If such orders cannot be resolved by that process, my Associate will provide a very short and strict timetable for the provision of concise written submissions on that final controversy, with the outcome to be decided by me in Chambers.

Orders 1. I declare the following: That the order of the District Court of New South Wales made on 4 November 2022 that pursuant to section 20BC(2) of the Crimes Act 1914 (Cth) the plaintiff is to continue to be detained in the Concord Centre for Mental Health (Kirkbride Unit), does not prevent the Medical Superintendent of the Concord Centre for Mental Health (Medical Superintendent) or another authorised medical officer within the meaning of s 4 of the Mental Health Act 2007 (NSW) from permitting the plaintiff to have: (a) supervised access to the grounds of the Concord Centre for Mental Health; (b) supervised access to the grounds of the Concord Repatriation General Hospital; and (c) supervised leave outside the grounds of the Concord Centre for Mental Health and the Concord Repatriation General Hospital, as outlined in the report of the Medical Superintendent dated 1 November 2023, supervision of such access and leave being by the persons contemplated in that report. 1. Separately, costs of the proceedings before me are reserved.

Amendments 19 August 2024 - Paragraph 50 line 1: changed "ascent" to "assent"; Paragraph 65 line 1: changed "In" to "in". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2024