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Parens patriae jurisdiction re-visited - Re Kara

Parens patriae jurisdiction re-visited – Re Kara

Published on February 16, 2021 by Bill Madden and Jesikah Richardson

First published in the Australian Health Law Bulletin, November 2020.
Jesikah Richardson and Bill Madden,  “Parens patriae jurisdiction re-visited — Re Kara” (2020) 28(9) HLB 162.

This note reports on a recent decision of the Supreme Court of New South Wales (“the Court”) handed down on 17 August 2020 in Re Kara.2

Introduction

An urgent application was brought by the Secretary of the Department of Communities and Justice (“the Department”) and the Minister for Communities, Families and Disability Services (“the Minister”) (collectively “the Plaintiffs”), seeking that the Court exercise its parens patriae jurisdiction with respect to the authorisation of confinement and medical treatment of an Aboriginal child under the parental responsibility of the Minister, in circumstances where the child had an extensive history of drug abuse and mental health problems. The Court noted the exceptional circumstances of the present case, in that the child was at serious risk of harm and/or death if the treatment proposed by the Plaintiffs was not undertaken. The Court deemed it to be in the child’s best interests that she be confined to a mental health facility for the purposes of medical treatment.

Background

The child subject of the application, referred to as Kara (a pseudonym), is a 16-year-old Aboriginal girl of the Wiradjuri and Yuin nations.3 At time of the application Kara was under the parental responsibility of the Minister and living in residential accommodation arranged by the Department, with 24-hour one-on-one care.4
Despite this level of care, Kara was frequently absent from her accommodation and it was submitted by the Plaintiffs that Kara was at an extremely high risk of harm or death due to ongoing drug abuse and other behaviour.5
By way of background, the Department had received numerous reports of significant risk of harm reports concerning Kara’s welfare dating back to 2005.6 On 26 March 2020, the Children’s Court had made orders pursuant to s 79(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) allocating parental responsibility for Kara to the Minister until she attained 18 years of age.7
It was only a few months later on 12 August 2020, that the Plaintiffs filed an urgent application seeking orders be made under the Court’s parens patriae jurisdiction and the statutory jurisdiction under Pt VII, Div 8 of the Family Law Act 1975 (Cth):

. . . authorising the removal of Kara to a medical facility and her confinement at that facility for the purpose of undergoing a medically supervised detoxification and withdrawal program. This was proposed as a first step in what is likely to be a long program of medical and psychiatric treatment, care and support.8

History of drug abuse and mental health issues

The Court was presented with substantial evidence in relation to Kara’s history of trauma, substance abuse, psychiatric condition and risk of sexual exploitation. The Court noted in detail Kara’s previous interactions with the Department and various medical facilities, including an adolescent drug and rehabilitation service known as “CICADA”. These interactions are worth setting out in detail below as the extent of the interactions were directly relevant to the Court’s willingness to grant orders which interfered with Kara’s rights to liberty and personal integrity.9

With respect to Kara’s drug usage evidence was adduced by the Plaintiffs which identified a history of
substance abuse since 2016, when Kara was 12 years of age.10 Consequently, in 2020 alone, Kara had been admitted to hospital on the following occasions:

9 January 2020 — suspected overdose of ICE and Valium11
13 February 2020 — due to police concerns about Kara’s medical condition12
10 March 2020 — after a suspected heroin overdose13
8 June 2020 — following erratic, aggressive and
self-harming behaviour thought to be druginduced,14 and
6 July 2020 — due to carer concerns about Kara’s
increased agitation and verbal threats.15

Kara had expressed a desire to stop using drugs and undertake rehabilitation. Kara had engaged sporadically with adolescent drug and alcohol rehabilitation programs known as “PALMS” and “CICADA”. However, at the time of the hearing the Court heard evidence from the Plaintiffs and specialists that all attempts at voluntary rehabilitation had been unsuccessful.16
In June 2020, Kara disclosed to the specialist at CICADA that she consistently used drugs such as ICE, cannabis, nicotine, alcohol and heroine.17 A report prepared by the specialist on 6 August 2020 and set out at [30] diagnosed Kara with an extensive list of disorders, summarised as follows:

• Post Traumatic Stress Disorder with dissociative symptoms — DSM V 309.81 (F43.10)
• Stimulant Use Disorder (methamphetamine) — DSM 304.40 (F15.20)
• Cannabis Use Disorder Severe — DSM 305.30 (F12.20)
• Cannabis Withdrawal Syndrome — DSM 292.0 (F12.238)
• Tobacco Use Disorder — DSM 305.1 (F17.200)
• Substance Induced Psychotic Disorder — DSM 292.9 (F15.159)
• Possible Diagnosis — requiring further psychiatric and neurocognitive assessment:

— Neurodevelopmental Disorder — such as; Intellectual Disability and/or Specific Learning Disability, Attention Deficit Hyperactive Disorder; Language Disorder (expressive or receptive language disorder); Executive function disorder, and
— Psychiatric Disorder.18

Furthermore, Kara had been in custody on 31 occasions between October 2016 and July 2020, she had been sentenced to a good behaviour bond for nine months and was the subject of an Apprehended Violence Order for the protection of her mother.19

Proposed Treatment

Justice Williams expressed particular concern having regard to the specialist’s overall assessment of Kara’s condition:

The specialist’s overall assessment of Kara’s current condition is devastating and alarming (my emphasis):
[Kara] now has almost no control of her own decision making and behaviour. Her ongoing drug behaviour is extreme and inconsistent with survival in the immediate foreseeable future. Her exposure to sexual exploitation and physical danger during intoxication makes her liable to death by misadventure if not the more malign intentions of those supplying the substances she cannot afford. There are no voluntary and less restrictive options for her care.20

In light of Kara’s condition, the specialist proposed the following treatment plan:

. . . Kara to be admitted to one of two secure inpatient mental health facilities for adolescents suffering mental health disorders or mental illness, for the purpose of medical management of substance withdrawal, cognitive and psychiatric assessment, general medical assessment, pharmacological treatment and psychological treatment to assist with stabilisation prior to transition into longer term secure accommodation to be arranged by the Department.21

The specialist estimated that Kara would require inpatient treatment for a period of approximately 6 weeks.22 However, the duration of the treatment may be longer or shorter depending on Kara’s progress.23
It is of note that the specialist’s report made specific reference to the possible need for the use of restraints during Kara’s admission, having regard to Kara’s history of physically aggressive behaviour.24 It was explained that should Kara resist treatment, the treating team would first attempt to verbally de-escalate the situation. However, in the circumstances that verbal de-escalation is unsuccessful, physical restraint may be necessary to administer sedative medication in accordance with New South Wales Health guidelines.25

In addition to the treatment plan proposed by the specialist, the Plaintiffs sought orders to limit Kara’s direct contact with her mother and other family members during the initial stages of her treatment, and for information identifying the inpatient facility to be withheld.26 It was requested that all communication be restricted to letters, cards and photographs for the following reasons; direct contact would not assist Kara with emotional dysregulation, it was unclear whether Kara would be in a state to receive visitors during the withdrawal stage, and it was likely to be distressing for Kara’s mother to witness her withdrawing from substances.27

In the specialist’s opinion no other voluntary or less restrictive treatment options would have been suitable for Kara’s needs.28 A failure to authorise the proposed treatment would have placed Kara at risk of the following:

The specialist identified the following risks to Kara if she does not receive appropriate treatment for substance abuse:

• risk of harm to herself
• continued risk of sexual exploitation
• continued risk of ongoing sexual assault
• risk of substance overdose and death
• risk of early psychosis ad mental illness, including risk of suicide
• risk of further juvenile charges and Incarceration
• risk of harm to others due to violence and aggression
• risk of chronic unemployment
• risk of unplanned pregnancy and prenatal substance exposure to unborn child.29

It is these risks that inform the specialist’s opinion to which I have already referred above, that Kara’s ongoing drug use is “extreme and inconsistent with her survival in the immediate foreseeable future” and that she is “liable to death by misadventure”.30

Parens Patriae Jurisdiction

The Supreme Court has parens patriae jurisdiction to make orders for the protection of those who are unable to protect themselves, in particular children.31 The best interests of the child are the paramount consideration of the Court, and the jurisdiction must be exercised with great caution.32
In the present case, the Court was asked to exercise its parens patriae jurisdiction on the basis that the ordinary scope of the Minister’s powers of parental responsibility did not extend to the authorisation of Kara’s confinement and treatment in a secure mental health facility.33
With respect to the Court’s parens patriae jurisdiction in cases where the child is a ward of the state, her Honour referred to and adopted the comments of Brereton J in the cases of Re Jules34 and Re Thomas.35
Firstly, in Re Jules36 Brereton J held:

. . . that the parens patriae jurisdiction was unaffected by the referral of powers to the Commonwealth in its application to children already in care under the (NSW) Children (Care and Protection) Act 1987.37

Nevertheless, this determination was considered somewhat unnecessary given that the Supreme Court of New South Wales:

. . . now enjoys all the jurisdiction of the Family Court of Australia as a result of (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987, including its powers in relation to children. Accordingly . . . because this Court shares with the Family Court the statutory equivalent of the parens patriae jurisdiction under Part 7 of the Family Law Act, this Court may make orders in connection with the welfare of children in/or analogous to the parens patriae jurisdiction.38

Furthermore, Brereton J affirmed that the scope of the parens patriae jurisdiction is extremely wide, stating:

. . . indeed, it has been said that no limit has ever been set to it and that it extends as far as is necessary for the protection and education of children [Wellesley v Wellesley (1828) 2 Bli NS 124, 136–137; Re X (a Minor) [1975] 2 WLR 335, 342; K v Minister for Youth and Community Services, 326].39

Despite the infinite breadth of the parens patriae jurisdiction, his Honour drew a clear distinction between the concept of “authorisation” and “consent”. His Honour explained that the “parens patriae jurisdiction does not empower the Court to confer authority on others” to do things which they ordinarily would not be authorised to do, rather it is more accurate to consider the parens patriae jurisdiction as the Court’s ability to consent to treatment which would ordinarily be outside the scope
of parental responsibility.40
Secondly, William J referred to and adopted Brereton J’s learned analysis in the case of Re Thomas.41 The facts of Re Thomas bear some similarities to those of the present case. Thomas was under the shared parental responsibility of his maternal grandmother and the Minister for Community Services, when he began exhibiting escalating self-harming and antisocial behaviour, drug use and violence towards others.42 Consequently, the Director General sought orders from the Court authorising Thomas’ indefinite involuntary detention in secure accommodation.43 In reaching a determination on the matter, Brereton J confirmed that the proposed treatment was beyond the ordinary scope of the Minister’s parental powers and thus required the sanction of the Court.44 Nonetheless, his Honour was satisfied that the proposed confinement fell within the scope of the parens patriae power.45 His Honour stated:

Orders interfering with personal integrity and liberty have been made sufficiently often now that it must be accepted that the jurisdiction permits them . . . In DoCS v Y, Austin J made orders to the effect that the child be returned to the Children’s Hospital without her consent, to resume a course of treatment for anorexia nervosa, and authorising the hospital staff to detain her, using reasonable force if necessary.46

His Honour went on to emphasise the need for great caution when exercising the parens patriae jurisdiction in a manner which would seriously impinge upon the child’s personal liberty, making reference to the requirements of Article 37 of the United Nations Convention on the Rights of the Child (CROC):

Nonetheless, great caution is required in the exercise of the jurisdiction and, generally, the greater the interference with the liberty of the object of the exercise of the jurisdiction, the greater the caution required in its exercise . . . Children, no less than adults, have a fundamental human right not to be deprived of their liberty unlawfully or arbitrarily.47

Ultimately, his Honour considered it appropriate to grant the orders in the circumstances, adopting the reasoning of Thorpe LJ in the English case of Re K (A Child) (Secure Accommodation Order: Right to Liberty):48

Thorpe LJ said that the order did not breach the child’s human rights, as the deprivation of liberty was a necessary consequence of an exercise of parental responsibility for the protection and promotion of his welfare. Thus, Re K illustrates that deprivation of a child’s liberty for “protective” purposes (as distinct from following conviction of an offence) may be justified, and even necessitated, by the protection and promotion of the child’s welfare, and in those circumstances will not contravene the child’s human rights. Since the protection and promotion of the child’s welfare lies at the heart of the parens patriae jurisdiction, I would hold that the jurisdiction extends to authorise the orders sought in this case.49

Court’s Decision

Justice William applied the above principles, albeit briefly, to the circumstances of the present case.50
Notably Kara’s legal representative, Ms Kelso, did not oppose the proposed treatment plan and orders sought by the Plaintiffs.51 Ms Kelso submitted that:

. . . the circumstances in this case are exceptional and warrant the exercise of the parens patriae jurisdiction to deprive Kara of her liberty in order to administer the proposed treatment . . . the treatment proposed by the plaintiffs was the only viable option for Kara as she has very complex needs that have not been able to be addressed through the efforts made by the Department over the years, including the provision of 24 hour one-on-one care and support. Kara’s attempts to engage in rehabilitation voluntarily have not been successful and she presently lacks the ability to make good decisions for herself.52

Her Honour held that the proposed treatment was considered to be beyond the ordinary scope of the
parental power allocated to the Minister, and thus the sanction of the Court under its parens patriae jurisdiction was required.53 Her Honour held that the jurisdiction of the Court was sufficiently wide to allow the all of the proposed orders to be made. Nonetheless, her Honour emphasised that the jurisdiction must be exercised with great caution, especially in circumstances where the orders pose a serious interference with the individual’s liberty.54

Her Honour affirmed the principle that a child has a right not to be deprived of their liberty except in
exceptional circumstances, stating:

Children have a fundamental human right not to be deprived of their liberty unlawfully or arbitrarily, as provided for in Article 37 of the United Nations, Convention on the Rights of the Child. However, in exceptional cases where deprivation of liberty is a necessary consequence of the exercise of the parens patriae jurisdiction for the protection of the child and the promotion of his or her welfare, the making of orders by the Court as parens patriae that interfere with the personal integrity and liberty of a child will not contravene the child’s human rights.55

Her Honour accepted the submissions of both the Plaintiffs and Ms Kelso. Based upon the evidence before the Court, her Honour considered Kara to be “at very high risk of premature death due to misuse of drugs, and sexual exploitation associated with her drug use”.56
Ultimately, her Honour held:

The orders involve a very serious interference with Kara’s liberty. However, this is for the purpose of the treatment described above, and I am satisfied that this is necessary in all the circumstances in order to protect Kara from serious harm or death in the short term and to promote her longer-term welfare. Indeed, the evidence establishes that this treatment is the only option left to try and save Kara from her current dire predicament.57

On this basis, her Honour granted the orders sought by the Plaintiffs with respect to the proposed treatment plan, the use of restraint by the treating team if necessary and the restrictions placed upon direct contact between Kara and her family, including her mother.

Conclusion

The Court’s decision reiterates the far-reaching breadth of the parens patriae jurisdiction. The wide nature of the jurisdiction is relatively undisputed and remains largely unaffected even in circumstances where parental responsibility for the child has been allocated to the Minister.
Nevertheless, the Court’s decision in Re Kara addresses the need to adopt great caution when seeking orders which would severely impinge upon an individual’s right to liberty and personal integrity. Only in the most extreme circumstances, where the child is at dire risk of harm and/or death and there are no other available treatment options, will involuntary confinement be warranted and ordered by the Court. The Court evidently seeks to uphold an individual’s personal liberty in a majority of circumstances. Only in the instance that a child may be at risk of death or very severe harm will the Court deprive a person of their liberty.

Interested readers may wish to note the two supplementary decisions in this matter, Re Kara (No 2)
58 and Re Kara (No 3).59 In the second decision, the Plaintiffs informed the Court that they no longer saw any need to withhold from Ms P (the mother of Kara) information about Kara’s precise location. In the third decision, orders were then sought to authorise the confinement of Kara to secure premises outside the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery. The Court made those orders as it was satisfied that this interference was necessary for Kara’s protection, and for the promotion of her welfare, at this stage in her life.

Authors

Bill Madden | Special Counsel, Carroll & O’Dea Lawyers

Jesikah Richardson |  Law Clerk, Carroll & O’Dea Lawyers


Footnotes

1. [2020] NSWSC 1083; BC202007753.
2. Above.
3. Above n 1, at [1].
4. Above n 1, at [1].
5. Above n 1, at [1].
6. Above n 1, at [7].
7. Above n 1, at [17]; Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79(1)(e).
8. Above n 1, at [2].
9. Above n 1, at [65].
10. Above n 1, at [18].
11. Above n 1, at [33].
12. Above n 1, at [33].
13. Above n 1, at [20] and [33].
14. Above n 1, at [33].
15. Above n 1, at [33].
16. Above n 1, at [21]–[23], [55].
17. Above n 1, at [29].
18. Above n 1, at [30].
19. Above n 1, at [35]–[37].
20. Above n 1, at [40].
21. Above n 1, at [41].
22. Above n 1, at [49].
23. Above n 1, at [49].
24. Above n 1, at [50].
25. Above n 1, at [50].
26. Above n 1, at [44]–[45].
27. Above n 1, at [44].
28. Above n 1, at [54].
29. Above n 1, at [60].
30. Above n 1, at [61].
31. Above n 1, at [63].
32. Above n 1, at [63] and [67].
33. Above n 1, at [68].
34. Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193; BC200809861 at [7]–[22].
35. Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217; BC200902041 at [22]–[38].
36. Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193; BC200809861.
37. Above n 33, at [7].
38. Above n 33, at [8].
39. Above n 33, at [14].
40. Above n 33, at [18]–[19].
41. Above n 34.
42. Above n 34, at [1].
43. Above n 34, at [1].
44. Above n 34, at [28].
45. Above n 34, at [28].
46. Above n 34, at [34].
47. Above n 34, at [35]–[36].
48. Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 WLR 1141; 2 All ER 719; [2000] Fam 377.
49. Above n 34, at [38].
50. Above n 1, at [62]–[67].
51. Above n 1, at [70].
52. Above n 1, at [70].
53. Above n 1, at [68].
54. Above n 1, at [63] and [72].
55. Above n 1, at [65].
56. Above n 1, at [71].
57. Above n 1, at [72].
58. Re Kara (No 2) [2020] NSWSC 1148; BC202008184.
59. Re Kara (No 3) [2020] NSWSC 1292; BC202009167.

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