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Director of Forensic Disability Annual Report 2015–16
Director of Forensic Disability Annual Report 2015‐16
© The State of Queensland 2016
Copyright protects this publication. Excerpts may be reproduced with acknowledgment to the State of Queensland.
Director of Forensic Disability GPO Box 806 Brisbane Q 4001 Telephone: 3247 5080 Email: directorforensicdisability@communities. qld. gov. au
Director of Forensic Disability Annual Report 2015‐16
30 September 2016
The Honourable Coralee O’Rourke MP
Minister for Disability Services,
Minister for Seniors and
Minister Assisting the Premier on North Queensland
Neville Bonner Building
75 William Street
Brisbane Qld 4000 Dear Minister
I am pleased to present the fifth Annual Report of the Director of Forensic Disability for 2015‐16.
This report is made in accordance with the requirements of section 93 of the Forensic Disability Act 2011. The annual report provides information on the key activities of the Director of Forensic Disability from 1
July 2015 to 30 June 2016 and highlights the ongoing strengthening of response to some of Queensland’s
most marginalised and vulnerable citizens. Yours sincerely
Vanda Wieczorkowski
Director of Forensic Disability
Director of Forensic Disability Annual Report 2015‐16
Table of contents
MESSAGE FROM THE DIRECTOR OF FORENSIC DISABILITY ........................................................................................... 3
OVERVIEW ............................................................................................................................................................... 4
THE ROLE OF THE DIRECTOR OF FORENSIC DISABILITY ................................................................................................................... 4
WHAT DOES THE DIRECTOR OF FORENSIC DISABILITY DO? ............................................................................................................. 4
FORENSIC DISABILITY SERVICE ........................................................................................................................................... 6
Administrator of the Forensic Disability Service .......................................................................................... 6
Gender and cultural profile ......................................................................................................................... 7
Offence history ........................................................................................................................................... 7
Age profile ................................................................................................................................................... 7
Authorised Mental Health Services ............................................................................................................. 8
Forensic Disability Clients ........................................................................................................................... 8
SECTION 87(1) (A) ENSURING THE PROTECTION OF THE RIGHTS OF FORENSIC DISABILITY CLIENTS UNDER THE ACT ….. 9
CLIENT COMMITTEE ...................................................................................................................................................................... 9
CLIENT VISITS ...................................................................................................................................................................... 9 COMPLAINTS AND OTHER INVESTIGATIONS ................................................................................................................................. 9
Complaints .................................................................................................................................................. 9
PROGRAMS ..................................................................................................................................................................... 10
Therapeutic and clinical interventions ..................................................................................................... 10
TREATMENT PROGRAMS ..................................................................................................................................................... 10
Wise Choices (problematic sexualised behaviour program) ..................................................................... 10
Everybody Needs to Know (sexual health and relationships program) .................................................... 10
Anger Management ................................................................................................................................. 11
HABILITATIVE PROGRAMS (SKILLS‐BASED AND DIVERSIONAL) ....................................................................................................... 11
Literacy and numeracy program .............................................................................................................. 11
Gardening program .................................................................................................................................. 11
Cooking program ...................................................................................................................................... 11
Art program .............................................................................................................................................. 11
Indigenous Art and Cultural program ....................................................................................................... 11
SECTION 87(1)(B) ENSURING THE INVOLUNTARY DETENTION, ASSESSMENT, CARE AND SUPPORT AND PROTECTION OF FORENSIC DISABILITY CLIENTS COMPLY WITH THE ACT ....................................................................................... 12
CLINICAL GOVERNANCE ....................................................................................................................................................... 12
SECTION 87(1) (C) FACILITATING THE PROPER AND EFFICIENT ADMINISTRATION OF THE ACT .................................... 13
LEGISLATIVELY COMPLIANT OPERATION OF THE FORENSIC DISABILITY SERVICE ................................................................................. 13 THE PROVISION OF LEGAL REPRESENTATION AND ADVICE .......................................................................................................... 13 TEMPORARY ABSENCE APPROVALS ........................................................................................................................................ 14 NOTICES UNDER SECTION 237 OF THE MENTAL HEALTH ACT 2000 .............................................................................................. 14
Director of Forensic Disability Annual Report 2015‐16
FORENSIC INFORMATION ORDER NOTIFICATIONS ..................................................................................................................... 15 REVIEW OF POLICIES AND PROCEDURES .................................................................................................................................. 15 SUBMISSIONS TO INQUIRIES ................................................................................................................................................. 15
April 2016 – Submission on the Inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia .......................................................................................................... 15
REVIEW OF THE MENTAL HEALTH ACT 2000 (QLD) COMPLETION ................................................................................................ 15
SECTION 87(1) (D) MONITORING AND AUDITING COMPLIANCE WITH THE ACT ......................................................... 16
MONITORING COMPLIANCE OF THE FORENSIC DISABILITY SERVICE ................................................................................................ 16
Compliance audit of the Forensic Disability Service ................................................................................. 16
SECTION 87(1)(E) PROMOTING COMMUNITY AWARENESS AND UNDERSTANDING OF THE ADMINISTRATION OF THE ACT ....................................................................................................................................................................... 17
MENTAL HEALTH COURT .................................................................................................................................................... 17
Mental Health Court matters ................................................................................................................... 17
Mental Health Court references and the National Disability Insurance Scheme (NDIS) ........................... 19
Capacity Building ...................................................................................................................................... 19
FUTUREDIRECTIONS .............................................................................................................................................. 22
APPENDICES .......................................................................................................................................................... 23
Tables and Figures
Table 1: Age range of clients ...............................................................................................................................7
Table 2: Activity of the director at the Mental Health Court .............................................................................17
Table 3: Regional breakdown of references ..................................................................................................... 18
Figure 1: Index offences by offence type by clients detained to the Forensic Disability Service .........................7
Figure 2: Types of offences ........................................................................................................................................... 18
Director of Forensic Disability Annual Report 2015‐16
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Message from the Director of Forensic Disability
I am pleased to present the 2015‐16 Annual Report of the Director of Forensic Disability (the Director).
This report outlines the function and operation of the Forensic Disability Service (FDS) and its compliance with the relevant legislative provisions, governance and administration as contained in the Forensic Disability Act 2011 (the Act).
During 2015‐16 I have worked closely with the Administrator of the FDS, Mr Ian Wilson, to ensure the protection and rights of forensic disability clients and that the involuntary detention, assessment, care, support and protection of forensic disability clients comply with the Act.
In January 2016 the Director’s office commenced an audit of the FDS over the quarter October – December 2015. The purpose of the audit was to assess compliance with the legislative requirements of the Act and key clinical areas that fall within the Director’s statutory responsibility. The audit identified opportunities for improvement. An action plan has been developed by the Administrator to implement these improvements.
The Director has continued to make representations on behalf of people with an intellectual disability or cognitive impairment who find themselves before the Mental Health Court. The Principal Legal Officer has appeared for the Director in the Mental Health Court and the Court of Appeal in a range of proceedings, and also provided legal advice on a variety of matters as required. The Director elected into 65 matters relating to people with an intellectual disability who appeared before the Mental Health Court to make appropriate determinations for a number of these alleged offenders.
My office has advised Department of Communities, Child Safety and Disability Services (DCCSDS) personnel on specialist forensic disability matters, and I have continued to work in partnership with the Director of Mental Health on complex case matters involving clients subject to Forensic Orders (Mental Health Court ‐ Disability). My office has started the process of reissuing policies and procedures about the detention, care, support and protection of forensic disability clients at the FDS.
Training in the area of forensic disability has been provided by the Director to staff of the DCCSDS, non‐ government disability service providers, and other Queensland Government departments such as Corrective Services. In 2015‐16 the Director provided training to approximately 210 staff from across the state and across a range of government departments. Two staff members, one from the FDS and one from the Director of Forensic Disability Office, were sponsored to undertake a Specialist Certificate in Criminology (Forensic Disability) at the University of Melbourne. This training has built the capacity of the Forensic Disability staff and staff of the Office of the Director of Forensic Disability to meet the needs of individuals with an intellectual disability detained to the FDS or on orders in the community.
In the coming year, a review will take place of all clients who have been continually detained for a period of five years at the FDS. The review will consider client benefit from the care and support provided by the FDS and whether benefit is likely to continue if the client remains at the service. Reports outlining the findings of the review will made available to the Mental Health Review Tribunal. My staff and I will also continue to work to ensure that clients have employment and community participation options available to them whilst preserving their own safety and the safety of others.
As the current year concludes, I would like to express my sincere appreciation to our colleagues in Queensland Health, the Mental Health Court and all DCCSDS regions and central office. Your collegiality and willingness to provide carefully considered advice is invaluable and ultimately contributes to better outcomes for some of Queensland’s most vulnerable citizens.
Vanda Wieczorkowski Director of Forensic Disability
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Director of Forensic Disability Annual Report 2015‐16
Overview
The role of the Director of ForensicDisability The Director of Forensic Disability is an independent statutory position appointed by the Governor in Council under the Forensic Disability Act 2011 (the Act).
The Director is responsible for the proper and efficient administration of the Act, including ensuring the FDS complies with the Act.
The Act includes provisions for:
safeguarding the rights and freedoms of
forensic disability clients
balancing their rights and freedoms with the
rights and freedoms of other people
promoting individual development
enhancing quality of life and maximising
opportunities for reintegration into the
community.
Under section 87 of the Act, the main functions
of the Director are:
ensuring the protection of the rights of
forensic disability clients under the Act
ensuring the involuntary detention,
assessment, care, support and protection of
forensic disability clients comply with the Act
facilitating the proper and efficient
administration of the Act
monitoring and auditing compliance with the
Act
advising and reporting to the Minister on any
matter relating to the administration of the
Act
any other function under the Act.
Section 88 provides the Director with the power
to do all things necessary or convenient to be
done in performing the Director’s functions
under the Act.
The Director is supported to perform the statutory functions by officers appointed under the Public Service Act 2008 (Qld). Throughout 2015‐16, the Director was supported and assisted by the following staff:
Principal Legal Officer –
Scott Dullaway
Principal Legal Policy Officer – Susan Louden
Principal Clinical Advisors – Elizabeth Lane and Daniel Pollock
Program Support Officer ‐ Carl Thorning.
What does the Director of Forensic Disability do? The Act and the Mental Health Act 2000 provide
for two types of forensic orders for persons
charged with an indictable offence. Where the
defendant is found to be of unsound mind due
to mental illness – with or without intellectual
disability – a Forensic Order (Mental Health
Court) may be imposed. For persons found unfit
for trial due to an intellectual or cognitive
disability, a Forensic Order (Mental Health Court
– Disability) may be put in place. The inclusion of
a Forensic Order (Mental Health Court –
Disability) in the Mental Health Act 2000 provides
the means to clearly identify people with a
diagnosis of an intellectual or cognitive disability
with a view to better meeting their needs.
The Act provides for the involuntary detention,
care, support and protection of individuals placed
on a Forensic Order (Mental Health Court –
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Director of Forensic Disability Annual Report 2015‐16
Disability) by the Mental Health Court who have
been detained to the FDS. In addition, there are a
number of other individuals with intellectual
disabilities or cognitive impairments who are on
forensic orders but detained to other Authorised
Mental Health Services. These individuals are
either detained on Forensic Orders (Mental
Health Court – Disability)1 or on Forensic Orders
(Mental Health Court). 2 The Director works in
partnership with the Director of Mental Health
through a Memorandum of Understanding, to
ensure a coordinated response to their care and
support.
The Director is entitled to elect in as a party to
Mental Health Court proceedings involving
individuals with intellectual or cognitive disability.
The role of the Director is to assist the Mental
Health Court, including making submissions
regarding the appropriateness or otherwise of
forensic orders for these individuals, and
submissions regarding their future placement and
management.
The Director of Forensic Disability coordinates
outcomes for individuals with intellectual or
cognitive disability who appear before the court
by liaising with DCCSDS regional offices to
coordinate Mental Health Court reports and
other documents required by the Mental Health
Court.
Partnership between the DCCSDS regions and the
Director continues a strong collaborative practice
and relationship. The process for developing the
Mental Health Court reports can be found in
Appendix 1.
1 These individuals have been found unfit for trial primarily because of their intellectual disability.
2 These individuals have been found of unsound mind or unfit for
trial primarily because of a mental illness but they have a dual diagnosis (a co‐existing intellectual disability or cognitive impairment).
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Director of Forensic Disability Annual Report 2015‐16
1. Forensic Disability Service The FDS is in its fifth year of operation and is
funded to accommodate 10 clients with an
intellectual or cognitive disability on a Forensic Order (Mental Health Court – Disability). During 2015‐16, nine clients resided in the FDS and one client was detained to the FDS but accommodated on 24/7 limited community treatment elsewhere.
In January 2016 one forensic disability client detained to the FDS passed away and as of June 2016 there was one vacant place at the FDS.
The FDS provides medium secure accommodation to residents. Clients engage in rehabilitatative and habilitative activities specifically tailored to their individual needs. Examples include anger management, sex education and sex offender treatment programs, art, gardening and cooking sessions, and limited community treatment where the client is escorted in the community to engage in tasks such as grocery shopping and banking.
1a. Administrator of the Forensic Disability Service The Administrator of the FDS is appointed by the Director, pursuant to section 96 of the Act. The primary functions of the Administrator are to give effect to the:
i) policies and procedures developed by the Director
ii) forensic orders of forensic disability clients.
The Administrator is also responsible for the day‐ to‐day operations of the FDS.
Mr Ian Wilson has been the Administrator of the FDS since 19 February 2015. In reflecting upon 2015‐16, Mr Wilson reports:
In the past year the Forensic Disability Service has continued its focus on supporting Aboriginal and Torres Strait Islander clients to maintain connection to family and country, regardless of distance, including meeting the costs of travel to enable face‐to‐face contact. Three clients were able to be visited by family members from North Queensland, and on four occasions through the year, assistance and
escorts were provided to individuals to enable them to travel to North Queensland to take part in sorry business.
The Forensic Disability Service was pleased to have opportunities to extend the high profile which it gives to the importance of supporting and safeguarding the exercise of people’s rights, through activities such as the Public Advocate presenting at the induction of new employees, and site visits by the Acting Public Guardian and the South Australian Public Advocate.
On World No Tobacco Day, 31 May 2016, smoking by clients became prohibited and the Forensic Disability Service became totally smoke free. This change proceeded smoothly and without adverse consequence, due in no small part to the preparatory work that had been undertaken during the preceding months, including the individualised support that Inala Indigenous Health Service provided to clients to assist them to realise their smoking cessation goals. The Forensic Disability Service has greatly appreciated the Inala Indigenous Health Service’s contribution to these health outcomes.
The Forensic Disability Service has appreciated the leadership, partnership and support provided throughout the past year by the Director of Forensic Disability, the Regional Executive Leadership Team in the South West Region and the Centre of Excellence for Clinical Innovation and Behaviour Support.
Mr Ian Wilson
Administrator, Forensic Disability Service
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Director of Forensic Disability Annual Report 2015‐16
1b. Gender and cultural profile During 2015‐16 there were nine males and one
female detained to the FDS, until the death of
one male client. Five of the clients detained to
the FDS identify as Indigenous.
The visiting service provided by traditional elders continues to provide opportunities to strengthen cultural connections for clients who identify as Indigenous. The inclusion of the South West Region Aboriginal and Torres Strait Islander Practice Leader as a member of the FDS Clinical Governance Committee continues to provide the opportunity to strengthen cultural capability at the FDS.
1c. Offence history Nine of the 10 clients were charged with committing multiple types of offences. The complete offence histories of the 10 clients detained to the Forensic Disability Service during 2015‐16 include sexual assaults and other sexual offences, deprivation of liberty, break and enter, unlawful use of motor vehicles with circumstances of aggravation, physical
assaults and arson. The index offences3 for the 10 FDS clients are presented in Figure 1.
Figure 1: Index offences by offence type committed by the clients detained to the Forensic Disability Service
1 1 4
4
Sexual Assault
Assault
Enter dwelling and commit indictable offence
Willful damage
The above information pertains exclusively to the index offence; that is, the most serious offence that carries the longest sentence. In some cases clients were charged with multiple counts of the index offence, as well as being charged with other lesser offences in addition to the index offence.
1d. Age profile The following table shows the age range of the clients detained to the Forensic Disability Service during 2015‐16.
Table 1: Age range of clients
Age (in years) Number of clients
18 to 30 3
31 to 35 4
36 to 65 3
3
The term index offence refers to the most serious offence which the clients were charged with committing.
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Director of Forensic Disability Annual Report 2015‐16
1e. Authorised Mental Health Services In addition to the 10 individuals detained to the
FDS during 2015‐16, there were 54 individuals on
a Forensic Order (Mental Health Court – Disability) who were detained to Authorised Mental Health Services as either inpatients, or outpatients granted limited community treatment.
In the circumstance where an individual is detained under a Forensic Order (Mental Health Court – Disability) to an Authorised Mental Health Service, the Director actively negotiates and consults with both the DCCSDS and the Director of Mental Health, to advise and make recommendations on appropriate supports and services.
The services provided to individuals by the DCCSDS depend upon their disability support needs and risk profile and can include funding for:
Therapeutic interventions such as: o treatment programs – problem solving,
coping skills and sex offender programs.
Accommodation supports and community access supports such as: o skills development such as personal
care, activities of daily living o behaviour management programs
within a Positive Behaviour Support framework
o case management services.
1f. Forensic Disability Clients People subject to a Forensic Order (Mental Health Court – Disability) are able to be detained by the Mental Health Court to the FDS, another Authorised Mental Health Service as an inpatient, or another Authorised Mental Health Service as an outpatient.
When the Mental Health Court or the Mental Health Review Tribunal grants limited community treatment to an individual, the individual remains detained to the FDS or an Authorised Mental Health Service, but may be granted the privileges of an outpatient.
When capacity is available at the FDS, adults placed on Forensic Order (Mental Health Court – Disability) may be detained there. Placement is based on the client being able to benefit from the specialist care and support provided by the FDS. Placement at the FDS only occurs where treatment can be tailored for individuals. The FDS is specifically for individuals with an intellectual disability or cognitive impairment.
The FDS currently has one vacancy but during the period of this report, no suitable referral has been received.
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Director of Forensic Disability Annual Report 2015‐16
Section 87(1) (a) Ensuring the protection of the rights of forensic disability clients under the Act
Clientcommittee The Director regularly attends the FDS Client Reference Group which has continued to meet on a quarterly basis, in line with its terms of reference. A pictorial format for the minutes of this meeting is used as a means of communication to support participants’ understanding.
Client visits The Director has used a range of formal and informal arrangements to remain engaged with the clients of the FDS and provide them with the opportunity to keep the Director informed of their experiences and aspirations.
In the course of conducting a close working relationship with the FDS, the Director has also had the opportunity to personally observe the provision of services to forensic disability clients.
Complaints and other investigations
Complaints Two complaints from clients residing at the FDS were received by the Director in 2015‐16. The first related to a client’s request for a second opinion in relation to his psychiatric care. This request has resulted in a review by an independent psychiatrist being sought. This request has been actioned by the Director and is ongoing. The second complaint involved a client’s grievance in relation to alleged excessive noise from night staff when he was trying to sleep. This matter was conveyed to the administrator of the service and dealt with in accordance with internal policy and procedure. No formal investigations have been undertaken during 2015‐16.
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Director of Forensic Disability Annual Report 2015‐16
Programs Therapeutic and clinical interventions The development of FDS programs has been
guided by the principles articulated in the
original Forensic Disability Service Clinical
Framework. This framework emphasises the
need for a holistic approach to client
rehabilitation, including a range of skills‐based
and diversional programs, in addition to
individualised therapy and group‐based,
offence‐specific programs.
Treatment programs aim to address problematic
behaviours either directly (e.g., therapy for
problematic sexual behavior) or indirectly (e.g.,
providing sex education). Habilitation programs
aim to develop skills and activities of daily living,
and provide interest and occupation.
A Clinical Governance Sub‐Committee oversees
the implementation of the Clinical Governance
Framework, and is attended by the Director. This
Committee ensures evidence‐based
interventions are delivered to the benefit of
forensic disability clients.
Treatment programs
The services provided to clients at the FDS depend upon their needs and risk profile. The following programs were delivered during 2015‐16:
Wise Choices ‐ sex offender treatment program
Everybody Needs to Know ‐ sexual health and relationship education
Anger management
Arson treatment program
Wise Choices (problematic sexualised behaviour program) The Wise Choices program is a sexual offending
treatment program designed for adult males who
have either offended sexually or have exhibited
inappropriate sexual behaviours. The program
specifically targets the needs of individuals whose
level of literacy, abstract thinking skills and/or
disabilities prevent them from participating in
mainstream programs.
The Wise Choices program uses cognitive
behaviour change principles and utilises the Risk
Need Responsivity (RNR) and Good Lives Model
(GLM) therapeutic frameworks. The program was
facilitated by trained and clinically supervised
staff. Additional liaison with support staff, family
and other stakeholders occurred regularly to
ensure successful completion of the program.
The program was delivered to forensic disability
clients and community clients. The program was
delivered twice weekly in group format with
individual one‐on‐one sessions conducted
weekly to consolidate skills, knowledge and
understanding for the participants.
Everybody Needs to Know (sexual health and relationships program) The Everybody Needs to Know program is a sexual health and relationships education program developed by Family Planning
Queensland specifically for the needs of individuals with an intellectual disability.
The aim of the program is for participants to learn about appropriate relationships, reproduction and sexual health.
The program was delivered to forensic disability clients and community clients in a group‐based format twice weekly, and individually where required.
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Director of Forensic Disability Annual Report 2015‐16
Anger management The anger management program is a cognitive behavioural therapy intervention program designed specifically for individuals with intellectual impairments who have difficulty in managing their feelings of anger.
This program was delivered in a group‐based format to forensic disability clients twice weekly and individually where required.
Arson treatment program The arson treatment program for individuals with intellectual disability was developed by Griffith University. It is delivered once a week over a six‐month period.
Habilitativeprograms (skills‐ based and diversional)
During 2015‐16 the following habilitative programs were delivered to forensic disability clients:
Literacy and numeracy program The literacy and numeracy program continues to be delivered to one client. It is a self‐paced program with a view to developing not only literacy and numeracy, but also self‐confidence and self‐esteem. Information from this program is reinforced during other programs, such as gardening and cooking.
Gardening program Gardening provides the clients with a sense of
purpose, and vegetables/herbs that are grown
are used in the cooking program. The gardening
program helps clients to develop skills in
growing, harvesting and preserving foods.
Other skills that are developed and/or enhanced
by the gardening program include socialising,
working together, task completion and increasing
physical activity. Five clients participate in the
program with good levels of attendance and
evident enjoyment. An additional benefit of
developing client budgeting skills and enhancing
their understanding of diet and health has been
seen.
Cooking program The objective of this program is to promote and
support clients’ health and wellbeing by
encouraging healthy eating practices. The
cooking program is designed to teach clients
about cost‐effective and easy‐to‐prepare recipes
and incorporates physical and occupational
goals, including motor skills development and
personal care skills for independent living.
Additional benefits of this program include
planning, organisation, task completion skills,
social and emotional skills development and
confidence in food preparation.
Art program The art therapy program is conducted for one
hour on a weekly basis with clients at the FDS.
The objectives of the program include improved
fine motor skills, increased creativity, relaxation
through the use of art as a mindfulness
technique, increased social skills through group
work, improved general knowledge and
increased sense of mastery and self‐esteem.
A range of specific ‘themes’ are embedded within
the program, for example, the creation of
artwork in preparation and planning in the lead
up to NAIDOC Week, Australia Day celebrations,
International Women’s Day and Reconciliation
Week. The program builds art skills, including
conceptualisation and visualisation of thought,
working together, socialisation and learning to
have fun in an appropriate way.
Indigenous art and cultural program The primary objective of the Indigenous art and
cultural program is to strengthen the clients’
sense of cultural identification and connection for
those identifying as Indigenous. The program
provides a vehicle for clients to engage with
conversation and storytelling about Indigenous
culture.
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Director of Forensic Disability Annual Report 2015‐16
Section 87(1)(b) Ensuring the involuntary detention, assessment, care and support and protection of forensic disability clients comply with the Act
Clinicalgovernance The Clinical Governance Framework of the FDS is predicated on the principles of maximising positive client outcomes through improving the effectiveness of services, reducing adverse events and reducing variability of service quality.
The framework is based on the Clinical Governance Framework for Disability Services and consists of five domains:
• Client and family participation
• Clinical effectiveness
• Effective, reliable and resilient workforce
• Safety and risk management
• Information management.
As part of the implementation of the Framework, the FDS reports specific clinical and operational data to the Director in response to set performance indicators. The service began reporting on these indicators in April 2014.Clinical performance at both an individual and whole‐of‐service level will continue to be monitored longitudinally, and data for regular reviews will be provided.
The framework is overseen by the FDS Clinical Governance Committee, which meets monthly. The committee is chaired by the Regional Director, South West Region, Disability and Community Services, DCCSDS.
The standing membership of the committee includes:
Regional Director, South West Region,
the Director of Forensic Disability
senior staff of the FDS
a cross‐section of experts and other
interested stakeholders.
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Director of Forensic Disability Annual Report 2015‐16
Section 87(1) (c) Facilitating the proper and efficient administration of the Act
Legislatively compliant operation of the Forensic Disability Service In addition to conducting formal audits of the FDS, the Director provides regular advice to assist the service to ensure day‐to‐day operation of the service is compliant with the Act.
This includes the provision of advice by the Principal Legal Officer on a number of issues relevant to statutory compliance.
The Provision of Legal Representation and Advice During 2015‐16, the Principal Legal Officer, who is a Barrister‐at‐Law, appeared as Counsel for the Director in the Mental Health Court and the Court of Appeal, which are constituted by Judges of the Supreme Court of Queensland on matters.
The Principal Legal Officer, in addition to providing legal representation, provided legal advice with regard to:
• making a submission to the Senate Community Affairs References Committee for the inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia
• provision of updates on forensic disability clients regarding oversight by the Director
• the use of seclusion of forensic disability clients at the FDS
• provisions of the Act, Mental Health Act 2000, and the Police Powers and Responsibilities Act 2000 in relation to securing police assistance to move forensic disability clients within the FDS
• FDS staff acting in self‐defence in response to physical confrontations or threatened violence at the FDS
• the conduct of audits at the FDS
• the entitlement of the Director to appear in the Mental Health Court
• the legislative provisions of the Act which concern the appointment of the administrator and senior practitioners
• the legislative review of forensic disability clients required to be undertaken if detained at the FDS for five years
• the operation of limited community treatment, including suspension, pursuant to forensic orders (Mental Health Court – Disability)
• information release with regard to Special Notification Clients at the FDS
• the application of the Disability Services Act 2006 in relation to Disability Services clients attending the FDS for rehabilitative programs
• the legislative provisions that pertain to the regulation of smoking at the FDS
• the legislative provisions that concern the licensing of vehicles and certification of modified vehicles
• the provision of information pertaining to rehabilitative programs conducted at the FDS to their legal representatives
• engagement of consultants at the FDS
• provision of personal information pursuant to the Information Privacy Act 2009.
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Director of Forensic Disability Annual Report 2015‐16
Temporary Absence Approvals Section 41 of the Act allows the Director, by
written notice, to approve the temporary
absence of a forensic disability client from
the FDS:
to receive medical, dental or optical treatment or
to appear before a court, tribunal or other body or
for another purpose the Director considers to be appropriate on compassionate grounds.
During 2015‐16 the Director approved 11 temporary absences for six clients from the FDS. These temporary absences were granted for:
eight absences to receive medical, dental or optical treatment
three absences for another purpose the Director considered appropriate on compassionate grounds.
Notices under section 237 of the Mental Health Act 2000 Chapter 7 Part 2 of the Mental Health Act 2000 (Mental Health Act) regulates the process that applies when a forensic disability client is charged with an offence by the Queensland Police Service.
Once a client is charged, the Administrator must immediately notify the Director in accordance with section 237(1) of the Mental Health Act.
The Director determines if Chapter 7 Part 2 of the Mental Health Act applies, and if the Director decides it does, then the Director gives written notice (Director’s Notice) of it to the Administrator, the Chief Executive for Justice and the Mental Health Review Tribunal.
Once the Administrator receives the Director’s notice, the Administrator must
immediately tell the client of the application of Chapter 7 Part 2 (required by s. 237(3) of the Mental Health Act 2000).
Section 237A of the Mental Health Act 2000 grants the Administrator the power to then ask the prosecuting authority to provide the Administrator with copies of certain documents relating to the offence.
Also, as soon as practicable after the Administrator receives the Director’s Notice, the Administrator must arrange for the client to be examined by a psychiatrist and obtain a report from the psychiatrist (s. 238 of the Mental Health Act 2000).
The Administrator must give the report to the Director within 21 days of receiving the Director’s Notice (s. 239 of the Mental Health Act 2000). The Director may after receiving the report obtain a further report (s. 239A).
The Director then considers the type of offence, the reports from the psychiatrist, and the subject matter in sections 240, 241 and 242, to determine whether to refer the matter to the Mental Health Court or the Director of Public Prosecutions, and whether the reference can be deferred due to the client being temporarily unfit for trial.
Also, once Chapter 7 Part 2 applies, the proceedings for the offence are suspended pursuant to section 243, until:
the Director of Public Prosecutions has made a decision on a reference under Chapter 7 Part 2, that the proceedings continue or be discontinued or
the Mental Health Court has made a decision on a reference under Chapter 7 Part 2 or
the Director has given notice to the Chief Executive for Justice that Chapter 7 Part 2 part no longer applies to the client.
During 2015‐16, the Director issued a Director’s Notice in relation to one forensic disability client who was served with a notice to appear in relation to a charge of alleged assault.
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Director of Forensic Disability Annual Report 2015‐16
Forensic Information Order Notifications Under the Mental Health Act 2000 the Mental Health Review Tribunal may make an order that certain persons can have information about a forensic disability client.
During 2015‐16 one forensic disability client was subject to a Forensic Information Order. As required by section 149 of the Act the Director made four notifications for this client as required by the Act.
Review of policies and procedures Section 91 of the Act states:
The Director must issue policies and procedures about the detention, care and support and protection of forensic disability clients.
The Director’s staff, in consultation with the FDS, has continued to review policies and procedures regarding the detention care and support and protection of forensic disability clients.
This is a critical contribution, not only in ensuring the ongoing compliance of the service, but in maintaining the congruency between its policy platform and contemporary research evidence base.
Submissions to Inquiries
April 2016 – Submission on the inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia
The Director made a submission to an inquiry by the Community Affairs References Committee into the indefinite detention of people with cognitive and psychiatric impairment in Australia.
The submission outlined the forensic disability framework in Queensland, the role of the Director of Forensic Disability, including in the Mental Health Court, and the purpose of the FDS.
Review of the Mental Health Act 2000 (Qld) completion In 2015‐16 the review of the Mental Health Act 2000 was completed and the Mental Health Act 2016 passed in February 2016. Although the Mental Health Act 2016 has not yet taken effect, when it does it will result in amendments to the Forensic Disability Act 2011.
The amendments include changes to the types of forensic orders made by the Mental Health Court, which will include both inpatient and community types of Forensic Order (Mental Health Court ‐ Disability).
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Director of Forensic Disability Annual Report 2015‐16
Section 87(1) (d) Monitoring and auditing compliance with the Act
Monitoring compliance of the Forensic Disability Service Under section 87(1)(d) of the Act the Director is responsible for monitoring and auditing the compliance of the FDS with the Act. The Director is also responsible under section 87(1)(a) for ensuring the protection of the rights of forensic disability clients under the Act, and under section 87(1)(c) for facilitating the proper and efficient administration of the Act.
The Director and her team have been working in collaboration with the FDS to ensure the treatment and habilitiation needs of the clients are being met by the service; in particular, the delivery of a broad range of offender treatment programs, strong multidisciplinary assessment and risk assessment.
Compliance audit of the Forensic Disability Service In early 2016 the Director and her staff conducted a formal audit of the FDS’s compliance with the Act and the relevant clinical areas that fall within the Director’s statutory responsibility.
The audit found there were areas for compliance improvement, from both a legislative and clinical perspective. A number of recommendations were made in the audit report, including recommendations related to individual development plans, transition planning, behaviour management plans and clinical governance. These will be a priority for practice improvement in 2016‐17.
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Director of Forensic Disability Annual Report 2015‐16
Section 87(1)(e) Promoting community awareness and understanding of the administration of the Act
Mental Health Court
The Director may elect to be a party in any
Mental Health Court matter where there is
evidence that the individual may have an
intellectual or cognitive disability, pursuant to
section 403 of the Mental Health Act 2000.
The Director’s independence from the
DCCSDS means that the Director cannot insist
the advice of her staff is accepted by the
DCCSDS; however, the process is a useful
means of ensuring specific forensic disability
expertise is available to Regional Disability
Service clinicians and the Mental Health
Court.
The Director also uses this process to
recommend access to specialist forensic
disability funding, where client need exhausts
regional funding capacity. This pool of
funding, while small, has been used to access
critical clinical functions such as:
specialist risk assessment
specialist offender treatment where
regional capacity is limited
specialist legal services to attend to
complex client matters
specialist reports for court.
intellectual disability or cognitive impairment.
Of these 241 matters, 65 of the references
contained information that indicated the
person may have an intellectual disability or
cognitive impairment, resulting in the Director
making an application to appear.
The Mental Health Court requested 50 reports
from the DCCSDS during 2015‐16. This
comprised 20 original report requests, and 30
requests for updates on pre‐existing reports.
The Director and her staff peer reviewed and
quality assured all draft reports and provided
advice to the DCCSDS on how the court might
be best assisted. Ultimately, the decision to
action such advice sits with the DCCSDS.
Table 2 reflects the activity of the Director at
the Mental Health Court in detail.
Table 2: Activity of the Director at the
Mental Health Court
Activity Number
References reviewed 241
References elected 65
Reports and updates 50 viewed/filed
Further detail regarding the agreed Mental
Health Court Report writing process for the
DCCSDS Disability Services is provided in
Appendix 1.
Mental Health Court matters
In 2015‐16, staff reporting to the Director
reviewed 241 references to the Mental Health
Court, in order to identify whether the
references related to people with suspected
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Director of Forensic Disability Annual Report 2015‐16
Figure 2 below illustrates the types of offences pertaining to the 65 references the Director elected into. As some clients were alleged to have committed multiple offences, the total number of offences is 82.
Figure 2: Types of offences
2 11 11
36 12
2
5 10 2
Arson
Motor Vehicle Offences
Property Offences
Sex Offences Child
Violent Offences
Drug Offences
Sex Offences
Adult Stalking
Police Offences
Other
During 2015‐16, 21 matters relating to people
with intellectual disability or cognitive
impairment were finalised in court.
Of the 21 completed matters, 11 resulted in
the court making a Forensic Order (Mental
Health Court – Disability) with each of the
defendants having been determined by the
Court as being either of unsound mind at the
time of the offence or unfit to stand trial.
The outcomes for the remaining 10
completed matters were as follows:
Two of the matters resulted in a
Forensic Order (Mental Health Court)
rather than a Forensic Order (Mental
Health Court – Disability) due to a
co‐existing mental illness.
One matter did not result in a
Forensic Order as the Court
considered the risk to the community
and to the defendant did not warrant
a Forensic Order.
The remaining seven matters were
returned to the Criminal Courts for
the criminal proceedings to continue
in the usual course. This occurs when
the defendant is not found by the
Mental Health Court to have been of
unsound mind at the time of
committing the alleged offences, and
the Court also determines the
individual is presently fit for trial.
DCCSDS regional breakdown of the 65
references in 2015‐16 is detailed in Table 3
below. A map of Queensland regions is
provided in Appendix 2. As expected, the
number of references is higher in those
regions that have higher populations. Table 3: Regional breakdown of references
Region Number of matters
Brisbane 11
Central Queensland
6
Far North Queensland
7
North Coast 8
North Queensland
7
South East 13
South West 13
Excluding individuals who are required to be
detained to the FDS, there is a correlation
between the location of the regions for
individuals referred to the Mental Health Court
and the locality for the place of detention.
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Director of Forensic Disability Annual Report 2015‐16
Cultural identity Of the 65 matters the Director elected to be a
party to in 2015‐16, 11 (17 per cent) related to
Aboriginal and Torres Strait Islander clients.
This proportion is significantly higher than the
number of individuals identifying as
Indigenous in Queensland, which is reported
as being 4. 2 per cent4. Of the remaining
matters, 34 people identified as
non‐ Indigenous, 3 identified as other ethnicity
and 17 were of unknown cultural identity.
Mental Health Court references and the National Disability Insurance Scheme (NDIS) Queensland is moving toward an historical
shift in the manner in which Disability Services
will be provided with the rollout of the NDIS
commencing on 1 July 2016. Around 48,000
Queenslanders currently receive disability
support and this will increase to around
91,000 Queenslanders eligible to receive
support through the NDIS.
In April 2013 the Council of Australian
Governments agreed to ‘Principles to
determine the responsibilities of the NDIS and
other service systems, including a set of
applied principles that aim to provide clarity
about which supports can be provided or
funded under the NDIS, and which are more
appropriately the responsibility of other
service systems. In considering offenders with
4 Australian Bureau of Statistics (2013). Estimates of Aboriginal
and Torres Strait Islander Australians, 2011. Retrieved 12 December 2014 from http://www.abs.gov.au/ausstats/[email protected]/mf/3238.0.55.001
a disability who are not in custody, the
National Disability Insurance Agency (NDIA,
2015) has stated:
The NDIS will continue to fund the full range of
supports related to the impact of a person’s
disability in a person’s support package where
the person is not serving a custodial sentence
or other custodial order imposed by a court. As
such the NDIS would fund supports where the
person is on bail or a community based order
which places controls on the person to manage
risks to the individual or the community (except
in the case of secure mental health facilities).
The NDIS represents an opportunity to better
address the disability support needs of
offenders with intellectual disability or
cognitive impairment who are not detained
pursuant to a Forensic Order. However,
clarification is still required in relation to the
NDIS funding supports for individuals subject
to a Forensic Order.
Of direct relevance to the support of
offenders with a disability will be emergent
detail regarding the provision of
community‐based accommodation;
preparation of reports and appearances in the
Mental Health Court; and clinical functions
such as risk assessment and offender
treatment.
The Director and her staff are actively
involved in consultations regarding the design
and rollout of the NDIS, advocating for
comprehensive and carefully considered
service responses for this vulnerable group of
Queenslanders.
Capacity Building
Communitystakeholders
The Director’s staff delivered multiple training
and information sessions to stakeholders
inside and outside of the disability sector.
These sessions have focused on a range of
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Director of Forensic Disability Annual Report 2015‐16
contemporary issues pertaining to the detention,
care and support, and protection of the legal rights
of offenders and alleged offenders with an
intellectual disability. These sessions seek to
integrate research evidence on the best practice
support of offenders and alleged offenders with
intellectual disability, with the applied learnings
and practice of the Queensland context.
Training and information sessions presented by the
Director and the Director’s staff have included the
following topics:
Incidence and prevalence of
intellectual disability amongst
offender cohorts
Forensic risk assessment
Treatment approaches for offenders with
a disability
Models of support
Report writing and the Queensland
Mental Health Court.
Training has been provided to disability staff and
other professional from a range of contexts, such
as:
DCCSDS
Queensland Health
conferences in the context of
disability, law and psychology.
This training is now a regular feature of the
Centre of Excellence for Clinical Innovation and
Behaviour Support annual training calendar as
professional development for disability sector
clinical and service access staff.
Training to Queensland Corrective Services staff
In 2015‐16 the Director and her clinical staff
delivered training in delivering a sexual offender
treatment program to Corrective Services staff.
This training provided an opportunity for
Corrections staff to understand the issues
relating to habilitation and rehabilitation of
individuals with intellectual disabilities.
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Director of Forensic Disability Annual Report 2015‐16
Regional DCCSDS professional development
The Director of Forensic
Disability and the Principal
Clinical Advisors were involved
in:
developing and delivering a five day
training event in May 2016 in Far
North Queensland to a combination
of DCCSDS, Department of Health and
non‐government staff regarding
sexual offender treatment for people
with intellectual disability
providing a four‐day Functional
Assessment and Positive Behaviour
Interventions course to a
combination of FDS and regional staff
from July 2015.
Staff at the Forensic Disability Service
In addition to delivering training to community
stakeholders, the Director is also actively
involved in training staff working within the
FDS. During 2015‐16, the Director’s staff
provided training to FDS staff focused on
areas such as legislative compliance, the
operation of the Mental Health Court and the
Mental Health Review Tribunal, the role of the
Director, human rights protections, and
contemporary treatment approaches for
offenders with a disability.
The Director also engaged collaboratively with
the Administrator of the FDS to ensure new
staff are appropriately trained and inducted.
The Director ensured clinical and legal staff
would collaborate with the FDS to conduct
the staff induction program.
During 2015‐16 the Director sponsored two
clinical staff, one from the FDS and one
from the Director of Forensic Disability’s
Office, to commence the Specialist
Certificate in Criminology (Forensic
Disability) at University of Melbourne.
The Specialist Certificate in Criminology
(Forensic Disability) comprises two subjects:
introduction to forensic disability
advanced practice in forensic
disability.
This post‐graduate course provides an
up‐to‐date understanding of key concepts and
issues in forensic disability, including
theoretical and practical training in the
assessment (including risk assessment) and
management of forensic disability
populations, and the complex professional and
ethical issues encountered when working in
the forensic disability discipline. The two
subjects are completed across a full year, as
two intensive study periods (one in March and
the other in October).
The development of forensic disability
expertise is not only critical in ensuring
compliance with section 87(1)(e), but also in
ensuring the Director’s overarching obligation
to protect the human rights of forensic
disability clients, particularly the right of clients
to receive effective support. The Director looks
forward to reporting on the completion of the
Specialist Certificate in Criminology (Forensic
Disability) by the two members of staff in the
next annual report.
Director’s staff development
The development of staff supporting and
assisting the Director is an important way to
ensure the Director performs her functions to
the highest standard.
The Director supported the Principal Legal
Officer, who appears as Counsel in the Mental
Health Court, to complete the Bar Practice
Course.
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Director of Forensic Disability Annual Report 2015‐16
Future directions In 2016‐17 the Director of Forensic Disability
will actively seek to improve those systemic
structures and cross‐government agreements
that are required to ensure consistent,
evidence‐based supports are available to all
offenders with an intellectual disability. This is
a critical aspect of ensuring the protection of
their fundamental human rights, while
enhancing community safety. In accordance with the Act, in 2016‐17 the
Director will undertake a review of the benefit
for clients from care and support provided by
the FDS. This will apply to any clients who
have been detained to the FDS for a
continuous period of five years. This measure
will ensure that if a client can no longer
benefit from the services provided by the FDS
they will not be subjected to ongoing
detention at the FDS.
Appendices
Appendix 1: Process for preparing reports for the Mental Health Court
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Director of Forensic Disability Annual Report 2015‐16
Appendix 2: Map of Queensland regions