Transcript of Hearing - SYDNEYThursday 5 December 2002
Please note: This is an edited transcript.
Commissioners:
- Dr S. OZDOWSKI, Human Rights Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Ms P. MOORE, Executive Officer
MR BROMWICH: Commissioner, before we start, I have been asked to place a concern on the record and I don't mean this to be in any sense a personal matter but it will have that flavour, I suppose. I've been asked to express a concern that there be no repeat of the sarcasm and personal attacks that were on occasions made yesterday. Commissioner, we are not aware that there has been the same approach taken to other witnesses before this Inquiry and indeed, I'm not aware that Counsel Assisting have been employed previously to, in effect, interrogate in part other witnesses.
These are, with respect, Commissioner, very senior Departmental officers. They are being asked what are complex and detailed questions with notice only as to broad topics and I'm simply asking - I realise that the heat of the moment can carry things sometimes but I'm asking that they be afforded the same courtesy and respect that I understand has been afforded witnesses at the Inquiry.
DR OZDOWSKI: Thank you very much for this observation. I would put it to you that if we were to have more yes and no answers and more direct answers, perhaps it wouldn't have happened. I would like to say further that I hope today the questions will be answered in a more [concise] manner so we can conclude certainly things today but thank you for your comments and I have brought them to the attention of Counsel Assisting.
MR BROMWICH: Commissioner, to the extent that the suggestion is being made that the witnesses haven't attempted to answer the questions, in my submission, that is not fair. Some of these questions have involved leaps from the specific to the general and witnesses have been, in my respectful submission, quite properly reluctant to take what has, in many cases, been an invalid step. I realise, Commissioner, you may not agree with that but the witnesses are doing their best to answer the questions as posed as well as they can and they have not always been susceptible to the short answer sought.
DR OZDOWSKI: Let us ask witnesses to continue doing their best and let the record to stand for public scrutiny.
MR BROMWICH: Yes, thank you.
MR WIGNEY: Yes. I think just if I can be permitted to comment very briefly on that before we move on. I think the transcript will speak for itself as to whether these witnesses have been endeavouring to assist the Commission by answering the questions put to them and I reject any accusation that any of the questions have been inappropriate to the extent that there was any sarcasm. It was yesterday afternoon when, you know, apart from a light-hearted response to what was a light hearted comment to me about a trick question, there has been no other sarcasm other than in the context of - I withdraw that.
There has been no sarcasm but I have attempted to press for direct responses to my direct questions, which in the most part were not objected to. Now, if we can just move on, please. Just to recap slightly to take us back to the position we were at before we were interrupted by the power failure yesterday afternoon, we were at the document at page 22 of the bundle [of a specific case study] and I had specifically directed your attention to the - that is part of the DIMIA Business Manager's report for the Port Hedland Detention Centre of November 2001.
I had specifically addressed your attention to the first sentence under the heading: Special Needs Cases where it is recorded by the DIMIA Manager at Port Hedland that the needs of intellectually disabled residents have still not been assessed or addressed. Now, as I indicated before we embarked on this case study yesterday, the concerns and focus of the Commission are the submissions that have been made by the Department to the effect that people with disabilities are promptly diagnosed and assessed and then case management plans put into place to address those disabilities.
That is the focus of the Inquiry. Now, yesterday we got sidetracked, as it were, as to whether there had been other medical interventions prior to November of 2001 and I invite you, please, if any of those - whether to tell us with some specificity what the medical interventions were prior to November 2001, relevant to the topic of diagnosis and assessment of the disabilities and formulation of the case plan.
MS McPAUL: Yes. I think that is our general understanding of where we were up to and we were going to assist the Commission with providing some additional information that we understand relate to the case in relation to the ongoing case management of these particular children and mother from the time that they were in the centre. It is my understanding, and if you bear with me, I can just run through a list of items here for the record, if you are happy with that. My understanding is that on 13.10.2000, the mother of the family - I will just check I'm using the correct numbering system from yesterday.
The mother of the family apparently commenced seeing a counsellor for anxiety and insomnia and was placed on some medication at that time. On 24.12.2000, again as I understand it, the mother was spoken to by a psychiatrist who mentioned to her apparently the possibility of the children having what I understand at that time was thought to be Fragile X Syndrome and the mother was provided with some information on managing children with intellectual disabilities. I then understand that on 3 January 2001, son number 2 had a further referral suggested to a particular doctor in relation to the delayed developmental issues I think that we looked at yesterday.
The whole - all of the children were apparently seen by their paediatrician at Port Hedland Hospital on 27 February 2001. On 28 February 2001 again the three children - here I'm referring to daughter 2, son 1 and son 2 in that context - apparently had blood testing carried out including some chromosome level testing. On 2 March 2001, those same three children, as I understand it, were reviewed by the paediatrician referred to earlier regarding their developmental levels and I believe indicated that Fragile X would be consistent with their understanding of the family history given.
As I think you may be aware, some other members of the family also exhibit some symptoms that appear similar. As I understand it on 11 June 2001, further medical advice was sought relating to seeking a definitive diagnosis for the other condition that we were working through in relation to the children. In August 2001, a paediatric registrar at the East Pilbara Health Service had appointments with the children. On the 18th of July - sorry, which - we got to - what date did you want to know up until?
MR WIGNEY: November 2001.
MS McPAUL: As I understand it, they are the particular medical interventions prior to that time and as you can see, most of those referrals were to doctors and paediatricians outside of our own particular set of doctors at the centre. So the reports and documents relating to those would most likely be held by those - that health service rather than the Department but I think it is clear that there was a cognisance of the particular - of the fact that the children did have a disability and that action was being taken to attempt to address that.
It might be helpful to put on the record what we currently understand to be the disability for these children, some information about their condition, if that would assist you.
MR WIGNEY: Well, we are going to come to that in due course, I think, so no doubt you will obviously have a fulsome opportunity to deal with that when we come to it. I'm trying to deal with it in chronological order but just ---
MR BROMWICH: Well, Commissioner, there is just one reason why it may be useful to have that additional information and that is the nature of the condition is one that was only more recently correctly diagnosed and even paediatric diagnoses early in the piece were wrong or at least wrong in the sense that the indications being taken at an early stage, we understand, were not correct and that explains in part some of the questions my friend is going to come to.
MR WIGNEY: Yes, well ---
MR BROMWICH: What I'm saying is that the ultimate diagnosis and information we very recently obtained, not specific to this case but generally, has a bearing on the questions that may be asked about the early stages because of the nature of the condition.
MR WIGNEY: Well, that evidence can be given by the Department witnesses rather than Mr Bromwich at the appropriate time as we go through the chronology.
MR BROMWICH: Well, I didn't say what the evidence was going to be. What I'm indicating is that it will have a bearing on questions early on because the very nature of the condition affects early steps that were taken or not taken.
DR OZDOWSKI: Counsel Wigney, please continue.
MR WIGNEY: Now, can I just pick up on a couple of points about the medical interventions that you just referred to. Now, putting aside for the present purposes the October and December [2000] assessments or consultations with the mother, I don't for a moment suggest that they are not important because you would agree, would you not, that in the case of disabled children, parental support is an extraordinarily important matter, that is, to ensure that parents have adequate support so that they can look after the children. Is that right?
MS McPAUL: I think the panel would agree with that.
MR WIGNEY: So we will come back to that topic in due course. There was a visit to a paediatrician, you say, on the 27th of February [2001]and do I understand your evidence to be that the Department does not have a copy of any report of assessment, written report or assessment, provided by the doctor in relation to that consultation?
MS McPAUL: As I understand it, the particular notes that that doctor may have taken at the Port Hedland Hospital would be held by that doctor at the hospital.
MR WIGNEY: But is it not - I'm sorry.
MS McPAUL: As I've said, we've provided all the documents that we've been able to locate within the Department.
MR WIGNEY: Is it not important if children with disabilities are assessed or diagnosed externally for that - any diagnosis or assessment to be provided in writing to the Department and ACM's so they are adequately able to deal with it?
MS McPAUL: My understanding is that in these circumstances the medical report would be held by the hospital, perhaps a synopsis of that would have been provided to an ACM doctor at the time.
MR WIGNEY: But not in the form of a medical report as you understand it?
MS McPAUL: I - well, I haven't seen the documents that are held by the hospital obviously but it would be my understanding that if the care was being provided to the children, a synopsis of the findings would have been provided to the doctor at the centre.
MR WIGNEY: Now again, does the same apply in relation to the consultation on the 2nd of March? Again, we don't have a medical report that [has been] provided by that paediatrician to ACM or the Department.
MS McPAUL: I think the scope of the notices for Notice 5 included documents that were actually in the Department's custody or control. I think there were some words
MR BROMWICH: Page 23 of the bundle.
MR WIGNEY: Yes, but my question simply is if the report is not in the Department's custody or control, it would follow from that, would it not, that the paediatrician has not provided the report to the Department?
MS McPAUL: Well, I'm not saying that. I'm saying that a search of the Department's records did not possibly identify this particular document that you were referred to but that does not necessarily imply that a document does or does not exist or that it may or may not be with ACM. So we did particularly seek some legal advice on the scope of this particular question.
MR WIGNEY: I see. In any event, as you indicated, and I don't want to get bogged down in this, but there was a reference to Fragile X and I think as Mr Bromwich correctly points out as we will discover in due course, ultimately tests were conducted in relation to that and it was - they were negative.
MS McPAUL: Yes. I think what we are seeing with this particular case is that clearly it was identified that there was a condition that the children might have and steps were being taken to try to identify what that condition might be and I think the other information that we have is that it is quite difficult in the early stages of that disease for it to be properly or adequately diagnosed, as it is a progressive disease and exhibits symptoms akin to a number of other conditions, many of which I understand were being assessed or eliminated by the work of the paediatricians over time.
MR WIGNEY: The next - well, what I think the next medical intervention you say occurred on 11 June 2001, I think you indicated that on that occasion, medical advice was sought seeking a definitive diagnosis. The position is that this family were detained from at least August of 2000. We have now 18 months later the seeking of a definitive diagnosis.
MS McPAUL: It is just approximately a year later but as I've said ---
MR WIGNEY: Sorry, my notes ---
MS McPAUL: As I said, I think the particular condition that these children are now diagnosed with, as I understand it, it is basically a disease that is quite difficult to diagnose initially. The information that we have is that the variation in clinical severity of symptoms and the individual rarity of each disorder often means that the doctors, parents and patients coming into contact with this group of disorders for the first time can be confused and overwhelmed because it is not clear at the outset of the onset of this condition exactly what it might be.
As I've said it is a progressive and degenerative condition which manifests itself more explicitly over time and I think what we are seeing here is a range of experts, including a number of paediatricians, having looked at the children, considering that they may first have one name for the condition but later on realising that that isn't exactly a definitive diagnosis for it.
MR WIGNEY: Do you accept that by June of 2001, that is slightly less than a year after the detention commenced, that there had been no definitive diagnosis of this condition?
MS McPAUL: I think that - what I'm saying is that it was - that the case was very difficult for a doctor to be certain of what the condition might be and what we are seeing here is an ongoing attempt, active attempt, by ACM and the Department to be able to specify the exact nature of the condition, as you would in the community with a child with something of this nature.
MR WIGNEY: Well, if we come back to the place where we commenced this Inquiry, that is, the Departmental Manager's report of November 2001, which is page 22, at the very least the opinion of the Manager of the facility at Port Hedland as at November 2001 was that the intellectual - I withdraw that. Was that the needs of this family, the disabled members of this family, had not been adequately or had not been assessed or addressed.
MS McPAUL: I think if you go on and finish that particular paragraph, you will see that there is some additional information there.
MR WIGNEY: Well, the additional information, and we will put it on the record if you like.
MS McPAUL: Yes, please.
MR WIGNEY: The outcome of DIMIA meetings with ACM's Manager, psychologist and Programs Manager, requesting that management plans be devised and implemented, is that the deficit has been acknowledged and plans are being made to address it, including the involvement of DCD and FACS. So that indicates that it had been acknowledged that the needs of these intellectually disabled residents had not been assessed or addressed.
MS McPAUL: I think it is saying that they were working - that they have acknowledged it and they are working with appropriate external agencies to find an appropriate range of options for the children. I think, you know, that that is what has been happening in that particular case.
MR WIGNEY: That as at November 2001, there was no, at least no, written management plan that had been devised and implemented in relation to the needs of these disabled residents - or disabled detainees.
MS McPAUL: Yes. I think we also need to be careful about the use of the term case management because I think there is - as we referred to earlier in the evidence from the Department, there has been an evolution of the way that we approach the management of individuals with special needs and others in the Department. I think the term case management is something that we have become more used to using towards the end of that year, but the information that I have available to me here is that a behaviour management plan for some members of the family was in place from 25 March 2001.
This behaviour management plan included tri-weekly therapeutic sessions for the family with a psychologist. The family's management being discussed at these fortnightly meetings. It also included 30 minute daily observations of one of the children and checks of the children on a number of times throughout the course of the day. Their cases were also discussed at the high risk assessment team meetings in the centre and it is my understanding that the parties involved in the ongoing management of the family from this, early in 2001 onwards, included our staff at the centre, some staff at central office, the ACM Programs Manager at the centre, the ACM medical services staff.
Staff of Family and Community Services, of DCD, and the other ACM welfare staff, including the child liaison officer, the school manager, the welfare manager and the psychologist. So that information is available to me here and that is my understanding of how the case is being handled. Whether we use the term specifically case management or not I think in the way that it came to be understood by the Department later in 2000, it was not actually in use at this earlier time and I guess that is why we have got something called a behaviour management program.
I think that what we are seeing here is some quite intensive management of the case from early on in their time in detention and some appropriate action being taken to manage their condition.
MR WIGNEY: Ms McPaul, I suggest to you that a plan to deal with the - to manage the behaviour of these detainees is fundamentally different from a plan to manage the needs of disabled people. You are - this plan is how to manage their behaviour in a detainment context, not how to deal with their needs. Do you agree with that?
MS McPAUL: No, I don't. I think the management plan that we are talking about here, as we've said, includes the school, the welfare, the psychologist and the medical officers of the centre as well as intervention with the relevant child welfare authorities and as we know also, we've been dealing with external paediatricians and health services in the East Pilbara area and I think compositely that picture goes to looking at all facets of the case.
MR WIGNEY: Where is it - where is the behaviour management plan? Show us the document.
MS McPAUL: Clearly I don't have that document with me here at the moment and a plan is also a series of actions to be taken, rather than just a record of something that might, you know, be written down at some point.
MR WIGNEY: Is it written down in a document?
MS McPAUL: I would need to check but as I've said, there is a number of plan facets ---
MR WIGNEY: But you plainly checked, haven't you? Is it written in a document?
MS McPAUL: I don't have any such document here with me at the moment, no, but that does not - you know, I don't think that negates the view that that there were clearly a number of people at ACM and from outside both DIMIA and ACM engaged in discussions about the condition of these children and what we were hoping to be able to put in place for them.
MR WIGNEY: From the point of the Department, or from the Department's point of view, who is in charge of the detention facility at Port Hedland?
MS McPAUL: There were a number of different managers over a period of time. Which particular time are ---
MR WIGNEY: November 2001. I don't want his name. Who is in charge? The manager. Sorry, it is a very simple question. Isn't the Manager the person in charge of the facility at Port Hedland?
MS McPAUL: The DIMIA Manager has certain responsibilities in relation to the centre, that is right, and as does the ACM Centre Manager.
MR WIGNEY: One would expect that if there was, call it what you will, a behaviour management plan or a case management plan or anything else to adequately deal with the needs of these disabled people, one would expect the Manager, Department Manager, to know about it. That is right, isn't it?
MS McPAUL: The Manager would have an idea of what is happening and I think they have indicated in their notes here that while they felt it may not have been adequate in some respects, that the issues had been acknowledged and work was clearly happening, as I've said, with a range of external agencies.
MR WIGNEY: The Manager didn't say that they were not adequate. He said that the needs of intellectually disabled residents have still not been assessed or addressed. Not that they were inadequate. That they hadn't been assessed or addressed at all.
MS McPAUL: Well, I don't know that they are saying that at all. I think what they are saying is that it has not been satisfactorily assessed and I think that that is consistent with what I'm telling you, which is that there was a process ongoing of attempting to properly assess what the condition that these children actually had was and in the expert opinion of a number of external paediatricians with whom we had consulted, there was not a clear diagnosis at that point.
MR WIGNEY: Now, I want to take you forward, please, to page 47 of the bundle. That is a memorandum on the letter of ACM, appeared to have been authored by the psychologist ---
MS McPAUL: Sorry, which page was that?
MR WIGNEY: Page 47.
MS McPAUL: 47. Thank you.
MR WIGNEY: I might just - if you haven't already done so, you might - I'm not going to take you through the entire document but just familiarise yourself with that document, please.
MS McPAUL: Okay.
MR WIGNEY: Now, this would appear to be a report prepared by the psychologist employed by ACM at Port Hedland to the - addressed to the Programs Manager in response to a request by the Programs Manager for a general outline of how to approach the issue of providing appropriate care and management of children with a suspected intellectual disability, right? Do you see that in the beginning of the document?
MS McPAUL: It appears to be such a document, yes.
MR WIGNEY: I just want to emphasise for a moment the use of the words "suspected intellectual disability." That would suggest, would it not, that the disability that these children had had not been properly assessed or diagnosed at this stage, that is, 5 December 2001. If my maths is correct, that is almost 18 months after the detention commenced.
MR BROMWICH: Well, with respect, Commissioner, the heading is 'suspected/identified'. That is the first point. The second point is that we have asked to place before the Commission, to some extent we have information about the difficulties of diagnosis including the fact that it can take many years for this particular condition to be diagnosed. Now, Mr Wigney does not want to have that placed on the record.
MR WIGNEY: Well, I do. I'm just doing it at the appropriate time.
MR BROMWICH: As I said previously, it affects criticisms being made about what did or didn't take place at an earlier time when it is realised that at a later time, the diagnosis - the diagnostic process of several years is not unusual or unreasonable and the false premise standing behind these questions is that it is somehow unusual or unreasonable, particularly by reference to 18 months. We have asked to have the record set straight so that can be properly understood and I can only repeat that request.
DR OZDOWSKI: Counsel Assisting?
MR WIGNEY: I will move through this document quickly but can I just respond to that by saying this. Our concern here is not that there had been incorrect diagnosis. It is that, in our submission, the records plainly indicate that these disabilities had not been properly or thoroughly assessed and perhaps even more importantly, the needs of these children had not been addressed at the very least up until very recent times.
MR BROMWICH: That is the very problem I'm trying to identify. That is the very point I'm trying to have addressed, that when you talk about needs, a necessary part of that is diagnosis. If you have a condition which takes some years, on occasions, to properly diagnose, that is going to affect your capacity to assess needs because you have got to know what you are dealing with. It is a false premise to say that you work out the needs and then you get the diagnosis or that you bring forward a diagnosis ahead of what is medically ordinarily possible.
DR OZDOWSKI: Counsel Assisting, the problem was apart from the needs, there is also the difficulty of making a correct final diagnosis. If we could deal with this issue first and then you continue with your line of questions after.
MR WIGNEY: I was going to give adequate opportunity to deal with it. If they want to deal with it now, they can go right ahead.
DR OZDOWSKI: Yes, we will listen now to the statement from the Department on this final diagnosis issue.
MS McPAUL: Thank you, Commissioner. As we said earlier, this - it is our understanding that the condition that the children have now been diagnosed with is one that takes some time to manifest itself. We've been able to do some of our research in relation to some of the conditions. I understand there are also a number of web sites that you might like to look at that relate to the particular condition and information contained by a number of different medical experts in this field.
The actual term, as I understand it and excuse me if I don't get this correct, it is apparently aspartyglucosaminuria or AGU which, as we understand it, is a lysosomal storage disease which can present a slow onset mental retardation. This can - this disease can present similar symptoms to those symptoms displayed with the Fragile X Syndrome including learning difficulties and Attention Deficit Disorder. This particular disease, as I said, can be difficult to diagnose initially. Definitive diagnosis can often take many years as various diagnostic possibilities are assessed and excluded.
The variation in clinical severity of symptoms and the individual rarity of each disorder often means that doctors, parents and patients coming into contact with this group of disorders for the first time can be confused and overwhelmed. Treatments at the moment appear to be in the fledging stage and only useful if administered prior to becoming symptomatic. These include things like bone marrow transplants, gene therapy, hormone therapy, organ transplantation, and aggressive orthopaedic management such as neuro-surgery of the spinal cord and cervical vertical fusions.
Seizures which are common in some lysosomal storage disorders may be managed with a number of anti-seizure medications. We understand that behavioural abnormalities often benefit from the use of sedatives and hypnotics. Sleep disturbances in some patients can also be managed with the use of the hormone melatonin. So I think what we are seeing here is that it is a progressive disease. It is a degenerative disease. It is difficult to manage and difficult, in fact, to identify and sometimes confused with the Fragile X disorder which, as I think we've seen some of the earlier paediatricians assessing these children earlier on, felt that it may be.
So I think it is important to understand that it is not something that just by looking at the child or coming into contact with the child you would actually be able to clearly assess and understand the nature of the disability, the way it might manifest itself or the way that it might need to be particularly managed or treated.
MR WIGNEY: Is that all you wish to say on that?
MS McPAUL: For the time being, yes. That is some of the information that we have to hand.
MR WIGNEY: I rather gather that that information you have obtained in fairly recent times from, amongst other places, web sites.
MS McPAUL: We've done some research on this. Now that we know from a medical diagnosis what the condition appears to be, we thought it would be helpful to be able to have some information for you and we've obviously been interested to know ourselves as part of that case management process.
MR WIGNEY: It does not appear that anyone else looked up these web sites, at least from the documents that we've got until very recent times at least.
MS McPAUL: Well, you can't make that assumption, I don't think, from the documents provided. People may be doing any amount of research separately and it would be very hard to know what an expert paediatrician might have resources to access.
MR WIGNEY: Unless they reduced it to a report which they gave to the Department or ACM in relation to these children. Is there anything else you want to say on that topic or Mr Bromwich wants to say on the topic?
MS McPAUL: Not at the moment, no.
MR WIGNEY: I just want to take you through what was, in fact, taking place in relation to these children as they remained in the Port Hedland detention facility.
DR OZDOWSKI: Counsel Assisting, could you put your microphone a bit closer because it is difficult to hear?
MR WIGNEY: I just want to continue to take you through the documents which record what, in fact, was occurring in relation to the assessment of these children and the addressing of their needs throughout 2001 and 2002 whilst they remained in the Port Hedland detention centre if I may. I think ---
MR BROMWICH: Commissioner, I just make this reservation. They record what is being recorded. It sounds like the obvious but that is what they do. They don't necessarily record everything that is happening because not everything gets recorded.
DR OZDOWSKI: But this is the evidence which needs to be tested in this forum.
MR BROMWICH: Tested? I thought this was an inquiry?
DR OZDOWSKI: It is an inquiry and we are testing the evidence here.
MR WIGNEY: Of course it would be open to the Department and I think the offer was made that if they really want to call any evidence of what, in fact, was taking place, it is certainly open to them to do so.
MR BROMWICH: We were told about these individual case studies late Wednesday of last week. Several officers were dedicated to assembling information to enable us to do what we could to answer the questions but we really had very little notice. We specifically asked to be told what documents witnesses were being taken to and we've been told by letter in reply that that would not take place. We are dealing with the - what we can the best we can in circumstances where we simply have not been given a degree of notice that would facilitate what Counsel Assisting is suggesting.
DR OZDOWSKI: Counsel's inquiry was ordered - this hearing was organised - originally scheduled for September and if we are not able to go about it more efficiently, we will have to continue hearings either this Friday or some time next week. I'm trying to avoid this - so please cooperate. Let us go through the matter as swiftly as we can, please.
MR WIGNEY: If I can just go through some of the medical records that do exist. At page 99 of the bundle, just very quickly, this would appear to be part of the medical record progress notes in relation to the first daughter - I'm sorry, the second daughter, the eldest daughter with a disability. Do you see that?
MS McPAUL: Daughter 1 from yesterday I think - daughter 2. Daughter 2 from yesterday.
MR WIGNEY: Yes. I just wanted to draw your attention to the fact that on the 7th of December 2001 it appears that some reference there to a formal assessment of IQ, I'm suggesting that tests were still ongoing as a matter of fairness to you. The other entry I wanted to point - direct you to was on the - I withdraw that. It was part of ACM's practice as far as the Department understands that if there were medical interventions, I think to use your term, they would ordinarily be recorded in a medical record or a progress notes. That would be the ordinary practice of most medical practitioners or health professionals, would it not?
MS McPAUL: In general, that is my understanding, yes.
MR WIGNEY: So any matters of significance ordinarily would be recorded in a record such as this one that we are looking at at the moment.
MS McPAUL: Maybe. Yes. It may be recorded elsewhere on the child's file or it may be recorded in notes that are made by external practitioners as well.
MR WIGNEY: Now, the only other point that I wanted to take you to was a further assessment, or interview at least, on the 15th of February of this year, which refers to some concerns about sexual vulnerability. Now, that is about towards the bottom of the page.
MS McPAUL: So that is on page 99?
MR WIGNEY: Yes. Now, of course, as I said as we go through these documents if there are any other documents that you want to draw our attention to or passages that I don't direct your attention to, then please don't feel constrained. Now, if we can just continue to move through the documents. At page 107 we have some similar progress notes in relation to - 107, I'm sorry. These medical records would appear to be relating to the son, that is the boy that is aged 12 or 13. Do you see that?
MS McPAUL: Yes, that is right.
MR WIGNEY: Again it would seem that as at December 2001, tests were continuing in relation to an attempt to assess or diagnose what was wrong with these children.
MS McPAUL: As I understand it, that is correct.
MR WIGNEY: There is a reference in - to that on the 7th of December and I think some follow up notes. Now, we haven't actually seen, I think, the reports of those tests but I don't think it matters particularly at this stage at least. If we can move through to - I apologise for the ---
MR BROMWICH: Can I just note for the record that these meetings and consultations are taking place every couple of days? That is what these records reflect. It is a fairly constant pattern of attendance.
MR WIGNEY: I've invited the witness, who is on oath, to give the evidence.
MR BROMWICH: I'm just noting ---
MR WIGNEY: And I've invited her, if there are any observations she wants to make about the documents, then she can do so.
MR BROMWICH: It is a common practice for counsel to note on the records something that is in the face - in front of everyone.
MR WIGNEY: Now, can I take you to 34(c) of the bundle, please. It is - I apologise for some idiosyncrasies in the numbering but if you find 34 and then there are a few documents after it.
MS McPAUL: Page 34.
MR WIGNEY: 34. Yes, backwards.
MR BROMWICH: These are extra documents that have been added in overnight.
MR WIGNEY: I'm sorry. No, they are not.
MR BROMWICH: They were there - not numbered. I see.
MR WIGNEY: Sorry. Can I take you firstly to 19. I'm sorry.
MS McPAUL: 19?
MR WIGNEY: Yes, 19. I'm sorry. Now, you will gather that what I'm doing is taking you through this in a chronological order hopefully.
MS McPAUL: Okay. So this is page 19.
MR WIGNEY: Yes. Now, it is part of a - the report of the Manager of the - the Department Manager of the Port Hedland facility for December 2001. You will see that from page 18 of the bundle and as we've seen from these reports, there is various topics or sub-headings and I want to direct your attention to some passages in the box dealing with individual care needs at the foot of page 19 which records the special needs of the three intellectually disabled children still not being met.
Meeting with special education teacher elicited some useful ideas and suitable plans were subsequently devised by the psychologist. These have not been implemented, however, due to a lack of personnel with suitable language skills.
Now, we have the three disabled children at this stage having been in detention now for in excess of a year. I think we are up to almost 15 months. We have the Department Manager in charge of the Port Hedland facility where these children are detained saying that the needs of these children are not being met and it would appear from this note that part of the difficulty is that there is inadequate personnel with suitable skills to deal with these children. Is that right?
MS McPAUL: I think the Manager was indicating that she felt that the needs may not have been met fully. However, she says that as well in that particular paragraph that there have been ongoing meetings with some other staff there. Particularly, I think, she refers to the special education teachers and she has also indicated that there were useful ideas and suitable plans that were being subsequently devised by the psychologist. So while it is an assessment that perhaps the needs were not being fully met in her view, it clearly indicates that work was ongoing to make sure that the needs were met to the extent possible.
MR WIGNEY: There is not much use having plans if they can't be implemented, is there?
MS McPAUL: Well, I'm not sure that is what this is saying. I mean, I think she is saying ---
MR WIGNEY: These have not been implemented however, due to lack of personnel with suitable language skills. That is what it is saying. There is not much point having plans if they can't be implemented. That is right, isn't it?
MS McPAUL: Well, ideally it would be useful to have a plan implemented. I agree.
MR WIGNEY: In relation to plans that this note indicates have been devised by the psychologist, are you able to show us what plans were in existence as at 2001, at least recorded in a report or a note?
MS McPAUL: That would be something that I may need to take on notice. I don't know if I have that particular document in our set here today. I certainly don't have it with me at the moment. I mean, if you are aware of it, I would be happy to have that pointed out so we can discuss it.
MR BROMWICH: In the interest of balance, I would ask my friend to go to page 17, which is the following month.
MR WIGNEY: Yes. Well, I'm going to come to that. I'm trying to do it in a logical, chronological order if you wouldn't mind and I will come to that. Now, in the next document chronologically that I wanted to take you to was the document at 34(c). So you have to find 34 and then go some documents through. That would appear as an email from the Centre Manager, I think, at the time, Department Centre Manager at the time at Port Hedland to two persons who, I think - and copied to officers of the Department, I think, in the central office. Is that right?
MS McPAUL: Yes, that is correct.
MR WIGNEY: Now, it's topic is the family that we are discussing in this case study. That is right, isn't it?
MS McPAUL: Yes, it is.
MR WIGNEY: The passage I wanted to direct your attention to commences three lines down. The psychologist is going to draw up a management plan for them based on her suggestions which will be implemented by the teachers. So in part this seems to deal with the education needs of these children but the point is this, is it not, that it indicates that as at 16 December 2001, that is 15 months after these children were first detained, there had been no management plan drawn up in relation to the special education needs of these children?
MS McPAUL: I think I already referred to the ongoing involvement of a number of people at the centre for these children, including educational, welfare and programs officers. I think there had also been approaches made to special education facilities external to the centre around this time for the children.
MR WIGNEY: I take it you are still not able to show us or point to a drawn up management plan for the special education needs of these children? Is that right?
MS McPAUL: Well, I don't have a copy of such a plan here, no.
MR WIGNEY: Well, let us go to the document that Mr Bromwich referred to earlier and that is at page 15 of the bundle.
MS McPAUL: I think perhaps before we move on, there are a couple of other matters in that particular document which ---
MR WIGNEY: Of course.
MS McPAUL: --- might be useful to have on. It does also say that one of the three children attended school about 60 per cent of the time last month, although the other children were not listed as attending. I think, as I've said, the inference that no attention was being paid to the educational needs of these children for any of the period or certainly around that time is not my understanding of what was happening with that particular case.
MR WIGNEY: No. My question was directed to whether there had been a management plan devised for their special education needs.
MS McPAUL: I guess what I'm saying is whether or not there is such a document in existence. It is not - not to say that there wasn't work being done to put educational, appropriate educational solutions in place for the children.
MR WIGNEY: Well, we have got one child attending school 60 per cent of the time and the other two children not being listed as attending at all.
MS McPAUL: Yes. As I understand it, there was a period in which the mother of the children declined to let her children attend the school.
MR WIGNEY: I see. We will come back to that topic. Now, the next document I was going to take you to was the document which is the Manager's report for Port Hedland for February 2002 at page 15. The document commences at page 14 but the passage dealing with these children commences on page 15.
MR BROMWICH: Sorry, have we skipped past 17?
MR WIGNEY: Sorry?
MR BROMWICH: We've skipped past 17, have we?
MR WIGNEY: I'm sorry, you are right. Yes. I had assumed that 15 chronologically would be before 17 but it is not. Perfectly right. January 2002. Mr Bromwich, as always, is perfectly correct. January 2002, Manager's report commences at page 16 and we now have, it seems, the Manager of the Department at least expressing the opinion that the needs of
MS McPAUL: We just seem to have a little bit of difficulty with the numbering in our particular folder. Could you just - it is page 16?
MR WIGNEY: Yes.
MS McPAUL: What do you believe is on the top of page 16?
MR WIGNEY: 17.
MS McPAUL: Page 17. Ours is the ---
MS GREAVES: There is page 18 as well. There are two pages that are the same.
MS McPAUL: We are on page 16. Is that correct?
MR WIGNEY: Yes. 16 is the commencement of the report just to indicate what we are looking at. 17 is the relevant passage.
MS McPAUL: Right.
MR WIGNEY: Now, as Mr Bromwich has pointed out, this indicates that at least by January 2002, that is 16 months after the children first - were first detained, the Manager of the Department at the Port Hedland facility has formed the view that their needs are being assessed - sorry, addressed through a specific case management plan by the ACM psychologist. Again, I ask if you have a document which satisfies the description of a case management plan in existence as at this time, I ask that you draw our attention to it now or take it on notice.
MS McPAUL: Look, as I - yes. I think we have taken it on notice as I understand it. Some Departmental officers are attempting to have such a document faxed down for your information. I should say as well that I think I alluded earlier to the evolution of the Department's approach to case management and the use of that term and the increasing sophistication of such documents over time. As I understand it, the use of the term and the compilation of a more comprehensive plan that outlines various aspects of case management was more uniformly used across all of the centres around the time of the end of 2001.
So certainly the Manager's statement here that there is a case management plan in place accords with my understanding of what was happening in centres for all children at that time, special needs children, unaccompanied minors and so on.
MR WIGNEY: It is a similar effect if you go to page 14 and 15. I'm trying to move things along as best we can. You will see that again as at February 2002, I think the Manager was - remained of the opinion that the needs of the intellectually disabled children were being addressed. That appears about two-thirds of the way down on page 15 but to - if one then goes to the following month, March 2002, the document commences at page 12. If one then comes to on page 13, the part of the report, the Manager's report, for March 2002, one sees that by that time the Department Manager is of the view that the special needs of the three intellectually disabled children are still not being met adequately:
ACM is very slow to produce suitable and implement management plans, partly due to the responsible staff being relocated for short term placements elsewhere.
So whatever happened in January and February, it seems that matters have regressed by March. Right?
MS McPAUL: Well, it is the view of the Manager that there may be some issues for ACM. Perhaps that question might be best to be addressed to them but as I understand it, the management plans that would have been put in place towards the end of 2001 would still be in existence. It is a question, I suppose, of continual refinement of those plans to make sure that the changing needs of the children are being addressed as they evolve. I think the important thing with the case management approach that is being adopted by ACM and the Department is that circumstances of individuals do not - are not static and don't stand still.
As we've seen with the particular needs of these children, the development of their condition degenerates over time and changes over time. So there would necessarily, I think, be a need to review those plans and to continually update them as different needs emerged.
MR WIGNEY: Yes. Well, we would rather like to see the plans because we haven't seen them and I suspect it is the case, isn't it, Ms McPaul, that you haven't seen a written management plan in relation to these children either, have you?
MS McPAUL: Personally? No, I haven't personally seen it but ---
MR WIGNEY: So when you are talking about - when you are talking about refining of management plans, you are just speculating, are you not?
MS McPAUL: No, I don't believe so. I think what is happening is that other officers of the Department are aware of these plans and I'm explaining our general understanding of how the plans work. For these and for other children, there is continual review, as we've said in this particular case, from the middle of 2001 with a range of staff at the centre and our staff in central office.
MR WIGNEY: In any event, it would seem that the head Department person at the - on the ground at Port Hedland himself wasn't happy with these plans - himself or herself wasn't happy with these plans as at March 2002
MR BROMWICH: I object - well, I object to that. That is not what he is saying at all. He does not say he is unhappy with the plans.
MR WIGNEY: Well, he says ---
MR BROMWICH: Concerns about adequate implementation.
MR WIGNEY: Well, he says that the special needs are still not being adequately met.
MR BROMWICH: That is a different question.
DR OZDOWSKI: Ms McPaul, did you speak to the other Departmental officers about the existence of this plan?
MS McPAUL: Members of my team have been working on the details of the preparation of this particular case and, as our Port Hedland Manager indicates there, there was a case management plan in place for the children so it is my understanding that that is the case.
DR OZDOWSKI: So the members of your team informed you about the existence of this part of the plan?
MS McPAUL: I've referred to the behaviour management and other ongoing care and members of my team have indicated that to me. That is my advice.
DR OZDOWSKI: That the plan does exist?
MS McPAUL: Well, I believe so, yes.
DR OZDOWSKI: Thank you.
MR WIGNEY: Well, you can take it on notice that if there is a written plan ---
MS McPAUL: We've already undertaken, I've already indicated that staff are at the moment attempting to obtain a copy for you.
MR WIGNEY: Now, in the next document I wanted to take you to again, we are still in March of this year, at page 34(e) of the folder you will see commencing in about the middle of the page is a print out of an email dated 27.3.2002 from someone to the Department Manager at the Port Hedland facility at the time. Right?
MS McPAUL: Yes. We have that document.
MR WIGNEY: Now, I'm trying to avoid the use of names but do you know who the author of that email is? What is his position at the Department?
MS McPAUL: At the present time he works in central office. Sorry, at the time in March 2002, I'm not sure whether he was in central office or at the centre but in any case, I am familiar with the individual.
MR WIGNEY: In any event, it seems to be a document that has been created after an HA - sorry, HRAT.
MS McPAUL: High Risk Assessment Team. Yes.
MR WIGNEY: High Risk Assessment Team meeting in relation to Port Hedland and it discusses, amongst other things, the children, the subject of this case study and I was going to take you to just - well, a couple of passages without slowing things down too much but you will see four paragraphs down there is a reference to the son and his intellectual disability being severe.
MS McPAUL: Yes.
MR WIGNEY: Do you see that?
MS McPAUL: Yes.
MR WIGNEY: I'm sorry, there is a reference to [name removed] throughout this email. That would appear to be the ACM psychiatrist or psychologist at the time.
MS McPAUL: That is our understanding, yes.
MR WIGNEY: If one goes over to the next page, that is on 34(f), the last paragraph of this document records this:[name removed], that is the ACM psychiatrist or psychologist:
Assesses the intellectual disability problems of the family are well beyond the capacity of the centre to deal with. They need a dedicated team of IDS, that is intellectual disability specialists, working to best practice and that cannot occur here. There has been no official diagnosis of Fragile X and [name removed] does not know where that comes from. The children need a diagnosis of their intellectual disability problems and a program of specialist therapeutic care. She intends to submit a formal management plan for each child this week.
So again we are talking about it seems that the suggestions for management plans being submitted as at March of this year but the real point here is that we have the ACM psychiatrist or psychologist saying the needs of these children cannot be adequately addressed in the centre at Port Hedland. Right?
MR BROMWICH: Just to put balance on that, I would ask my friend to refer to the second last paragraph on page 34(e) which suggests - well, suggests that release isn't really an option in the circumstances.
MS McPAUL: I guess one of the things, particularly with this family, we've working as you know with the child welfare authorities in Western Australia and the health service authorities in Western Australia and it is quite difficult to, as I understand it, obtain the kind of support in the community as well in that region for some of the, I guess, best practice or ideal things that we might like to have in place for these children. But that is not to suggest that the people who are working with them on a daily basis and supporting the family are not doing the very best that they can with what they have available.
MR WIGNEY: Please understand that I certainly, and the Commission certainly, isn't being critical of the people employed at these facilities who, for the most part, may well be hardworking and dedicated staff. We are not being personally critical. We are addressing the systemic issues relating to dealing with disabilities and here we have the member of the ACM staff, who is a psychiatrist or a psychologist, saying the needs of these children with disabilities cannot be addressed in this facility. Right?
MS McPAUL: That is the view expressed there, yes.
MR WIGNEY: We will come to the various options in due course and the views that have been expressed by various people. I don't think anyone is suggesting that one ought just open the gate and let them walk out but where are they now?
MS McPAUL: As I understand it, they remain at the Port Hedland facility.
DR OZDOWSKI: Can I ask you a question? It is a family of five, including three disabled children. What is the risk of them absconding if they had been released and allowed to access services in the community?
MS McPAUL: Well, they would need to be eligible for a bridging visa as well. I think we went through the whole dynamic of that yesterday so ---
DR OZDOWSKI: Yes, and I understand that and I also understand that it may not be possible to do this under the present system of law. But would you describe them as likely absconders?
MS McPAUL: It is difficult to know because there are - I think there is seven in the extended family for this group. They have - that is right, not all of them are intellectually disabled and they have, as I understand it, been right through the process, the determination process, including through the appeals process and I think the point that Ms Godwin made the other day in relation to this is that as people come towards the end of the process, there is a greater likelihood of them wanting to stay in Australia. So, you know, there is a risk factor to be taken into account there, given the stage of their processing.
DR OZDOWSKI: So there is a risk, despite their dependence on services at this stage of their processing, that they could abscond?
MS McPAUL: It is possible, yes.
DR OZDOWSKI: Yes. What about two years earlier when they started their processing?
MS McPAUL: Would the ---
DR OZDOWSKI: Would they abscond?
MS McPAUL: Well, it is very hard for me to speculate on what they might do. I mean, I think there are risk assessments made about some of those things at different times but the likelihood of absconding is not in itself a criteria for the grant of a bridging visa, even if they were eligible at that time for the grant of one. But I think the point that we were making earlier is that in that particular region, it is a remote area of Western Australia as you know, the kinds of support to any family with intellectual disabilities of this nature in that particular region is difficult because of the nature of the health services able to be provided more generally in the community.
DR OZDOWSKI: Is the school in Port Hedland looking after children with special needs?
MS McPAUL: Just give me a moment just to check my notes on that. Look, it is my understanding that the children are attending the Catholic school with the other children from the centre.
DR OZDOWSKI: Yes, I know. I have seen them there. My question is: is there in Port Hedland a school which would better suit their needs? Is there a school for intellectually disabled children?
MS GREAVES: My understanding is that there are some state schools, state Government run schools, that may have facilities and indeed that was one of the subjects of conversation with the Western Australian Department of Education that we raised - I mean, we took up recently in November.
MS McPAUL: The children are receiving one on one instruction from, as I understand it, an ACM teacher in the school facilities every day. So that - from that point of view they are receiving individual education that is targeted towards their particular needs but I ---
DR OZDOWSKI: From a specialist teacher - a teacher who specialises in disabilities?
MS McPAUL: I would need to check the specific qualifications of that individual but it is my understanding that ACM have taken steps to have an appropriate person there for those children.
DR OZDOWSKI: So if you would check the file. What I'm really interested is, clearly this family which has been a very long time in detention with three handicapped children, several handicapped children, and I would like to know whether all the resources which are available in the locality were used to advance their health and their educative needs.
MS GREAVES: Commissioner, we certainly tried to - ACM certainly tried to access a special education unit in Port Hedland at various times but that wasn't available to us. That is why we have now taken the issue up with the higher level.
DR OZDOWSKI: When did you first approach that unit?
MS GREAVES: December 2001 and then later in March 2002. Sorry, May 2002. March 2002 and then again in May 2002 with various ---
DR OZDOWSKI: Okay. So maybe that is all for the moment and I hope to get from you some information about the qualifications of that special needs teacher.
MS McPAUL: Our colleagues in ACM may be able to assist.
DR OZDOWSKI: Thank you. Counsel Assisting?
MR WIGNEY: Yes. I just pick up on the point I think specifically dealing with education. Can I take you to a few documents and I will try and move through quickly here. I don't want to be accused of skipping over positive things but I think as I indicated at the very commencement of this case study, we don't for a moment suggest that this is other than a complex and difficult case to deal with.
MS McPAUL: Look, I think we are in agreement that of the small number of children with disabilities that have ever been in the centre, this particular case is clearly one that is very complex and it has been one that is acknowledged in that vein.
MR WIGNEY: Now, those difficulties and complexities, and if I can try and do this in short terms, are demonstrated by some of the following documents that I will try and take you to quickly. If you go to page 36 of the bundle and picking up on the points raised by the Commissioner about education in particular, one can see there a document dated 27 March 2002. It is from the Programs Manager to the then Centre Manager at ---
MS McPAUL: No. To the ACM Centre Manager, yes.
MR WIGNEY: I'm sorry. The ACM Centre Manager.
MS McPAUL: Yes.
MR WIGNEY: It refers to the education plan in relation to these children and the difficulty under the present circumstances to devise a plan for the children and then he goes on to say:
Each requires a carer at all times for education to be a success. It is difficult to provide for them educationally, including socially. They require individual attention and assistance. Each appears to have an intellectual disability.
Now, again in general terms, you would have to accept, would you not, that attempting to provide proper education services for these disabled children in a detention environment such as Port Hedland was an extremely difficult matter to accomplish.
MS McPAUL: Look, I think it would be difficult anywhere to provide the appropriate care for this particular group of children with this particular kind of disability.
MR WIGNEY: If one goes over to page 37, and again take us to any other passages if you wish, but at the top of the page the Programs Manager refers to the fact that education is best if trained staff work with these children and then he refers to an option for the children to attend the special education class at South Hedland if that were possible.
MS McPAUL: Yes, that does make reference there to that.
MR WIGNEY: Again just trying to move through things fairly quickly, if one goes to 42(a) ---
MS McPAUL: Sorry, 42?
MR WIGNEY: 42(a). Now again, to emphasise I'm certainly not being critical of the individuals involved in this but it really demonstrates the profound difficulties in trying to involve these children in the education services that were provided to other children at the facility.
MS McPAUL: Look, I think we do acknowledge that and I think as my understanding at the moment is that the children are being taught with an individual teacher in a room of their own at the school, somewhat separate from the other education services being provided to the children there at the moment. That is in recognition of a range of factors including their socialisation and their intellectual impairment and the kind of one on one approach that is needed in that environment.
MR WIGNEY: Again not wishing to be critical but that teacher, I think it is clear - I withdraw that. You are aware of whether that teacher has special education training in relation to ---
MS McPAUL: Somebody is checking that point.
MR WIGNEY: Thank you. Of course, throughout these documents there is a reference to the fact that really someone with special training in relation to the education of disabled children is necessary.
DR OZDOWSKI: You are aware also ---
MS McPAUL: I'm sorry. We are just conferring about the education now. We are just checking some details.
MR WIGNEY: Perhaps if you jump through to 42(d).
MS McPAUL: Yes.
MR WIGNEY: I was just going to take you - that is an email from the Department Centre Manager to the Department central office in relation to these children. I think the topic is of interest but if one goes to the paragraph on the bottom of the page, there is reference to the ACM teacher who takes them to school and works with them every morning. He is having ongoing discussions with the state school and with another school, both of which have special education programs. He hopes that he can get some input from one or other in the next couple of weeks, even if it is just a couple of days a week that a special education teacher spends with them. It will relieve him a bit understandably.
MS McPAUL: Yes.
MR WIGNEY: Then there is a reference to the fact that he does not have any special education training and that I think the most - the local school that other children attend also does not have a special education trained teacher.
MS McPAUL: My understanding that that is the case for the Catholic school. I think as we have said from early in 2001, approaches had been made and continue to be made to that - the various special education units at the other schools in Port Hedland with, we'd have to say, limited success and that is - whereas I understand it we are still in some negotiations with the Western Australian authorities to enable us to access those facilities in the way that we would like.
DR OZDOWSKI: To say that they go to a school, is a bit of an overstatement, because they are using a room, which is not a part of the main school. It is a room which has not been used for some time for any other purposes.
MS McPAUL: I understand it is on the school premises.
DR OZDOWSKI: Yes. But it is not even equipped properly as a classroom.
MS McPAUL: No. That is an assessment that you've made. I can't comment because I haven't personally seen that.
DR OZDOWSKI: Yes, thank you.
MR WIGNEY: I suppose the point is this, Ms McPaul, that we are now in this document as at May 2002 coming up towards to two years in which these children have been in detention and even recognising the difficulties and complexities of this particular case, it would appear that they have not had any special education dealing with their disabilities for the better part of two years.
MS McPAUL: I mean, I think the educational opportunities provided to the children take account of their disabilities to the best that is available at the time and taking account of the evolving nature of the disabilities that the children have. I think you may be aware that for some other - it is common throughout Australia for children and others with disabilities and intellectual disabilities to also have access to programs and activities that provide a range of tactile and other experiences for those individuals.
You may be aware, I think from some of the notes that we have provided, that these particular children also participated in the riding for the disabled program at Port Hedland for a period of time and successfully completed that program and as I understand it, enjoyed it and got quite a degree of benefit from that.
MR WIGNEY: Yes, I think that is the example that you gave in the Department's written submissions to the Commission and that is why we embarked on this particular case study but the point is this, is it not, that accepting for present purposes that the Department and ACM did offer the best available services open to them to offer in this detention environment, the point is that the best available at the time was not good enough to adequately deal with this disabled - these disabled children? That is the point, isn't it?
MS McPAUL: Well, I would accept that it is not part of the state or a state curricula for special education. So to that extent I accept broadly what you are saying.
MR WIGNEY: Just excuse me for a moment.
DR OZDOWSKI: I would propose to adjourn at 10 o'clock for a coffee break.
MR WIGNEY: Yes.
DR OZDOWSKI: Will we be able to finish that case at a later time?
MR WIGNEY: Probably not. Perhaps if we break now I will try and shorten things so that we don't take - Mr Bromwich can tell me any particular documents he wants me to take the witness to or he can obviously take the witness himself and I will try and skip over some to move things along.
DR OZDOWSKI: Yes, so continue. We will break 10 o'clock.
MR WIGNEY: Yes. I'm sorry ---
MS McPAUL: So where are we up to?
DR OZDOWSKI: No, no. I'm saying just continue and we will break in 5 minutes.
MR WIGNEY: Now, I just wanted to try and jump forward a little bit. Just bear with me for one moment and make sure - I'm sorry, without being overly repetitive if you go to page 10 and 11 of the bundle you will see the Port Hedland Manager's report for April 2002 and again a reference to the fact that the opinion of the Department Centre Manager at the time was again that as at April 2002, the - whilst the children are being monitored by HRAT, there is an ongoing problem in relation to the need for special education and training is not being addressed.
MS McPAUL: Well, look, I think it reflects the Department's ongoing expectation that special education would be ideal to be provided for these children and I think the Manager is reporting back that there is still obviously still some difficulty accessing those external services ---
MR WIGNEY: Can I ask - I'm sorry.
MS McPAUL: --- as we've referred to. I mean, we've been attempting for some time to have access to those facilities.
MR WIGNEY: Now, on a slightly different topic, you recall that I asked you earlier this morning about the need for support of parents - supporting parents of disabled children so that they are adequately able to ---
MS McPAUL: Yes, and we would agree that that is an important component.
MR WIGNEY: If one goes to page 80 of the bundle - eight, zero. Yes.
MS McPAUL: Eight, zero.
MR WIGNEY: You will see, I hope, some medical records, progress notes in relation to the mother and in general terms it would be - it would appear that as at the May of 2002, Family and Community Services, that is a state authority, is being interviewed in relation to whether the mother is able to cope with the looking after her children in the detention environment.
MS McPAUL: That is - there is a notation there in relation to that but as I understand it, the mother had been supported in a number of other ways from early in 2001 as mentioned before. The whole family was part of an ongoing process of support. You know, I don't think that the Department disagrees with you that their support to the family in this context is important.
MR WIGNEY: Yes. You will see that in the next sentence it refers to the fact that at least as at May, she was relaxed and in a good mood, grateful for the help with the children but then if one goes over to the next page, we've got May of 2002 and again another interview with the mother: seen in the school as I was passing them - or it seems that it was just an observation in passing:
She was with her children, very upset as the other children had gone to the catholic school and her children were excluded. After long session, settled her down, however she is emotional and worn out in relation to her situation with the children and school and their education.
MS McPAUL: I think she also says - that appears to be the note there.
MR WIGNEY: Now, as far as you are aware from your study and consideration of this case study, was that the first opportunity that Family and Community Services had been bought in to deal with?
MS McPAUL: No. I believe that the particular circumstances of this family, different aspects of this family's situation were brought to the attention of Family and Community Services some time earlier than that. I think the first indication was on - in March 2001 I think was probably the first time that matters relating to this family were drawn to the attention of Family and Community Services.
MR WIGNEY: Just while we are on the topic of state authorities and before we take the break, can I take you to page 30(a) of the bundle. Now, this is a fax from the centre management down to someone at head office in the Department and there is a reference to some communication from the Disability Services Commission, that being a commission specially set up in
MS McPAUL: Sorry, just the page numbering thing again. 30(a)?
MR WIGNEY: I'm sorry. 30(a).
MS McPAUL: Yes, thank you.
MR WIGNEY: That fax refers to a letter from the Disability Services Commission. You are aware that that is a state body specifically set up to deal with people with disabilities. Having recently visited the facility in relation to these children, are you aware of whether the Disability Services Commission had been called in at any earlier stage, that is, prior to 27 June 2002, in relation to these children?
MS McPAUL: Not specifically aware although we understand that DCD was part of the earlier programs that we talked about from March 2001 but whether or not the matters specifically to the individual that is specified here, I'm not aware.
MR WIGNEY: Well, it would seem at least, and this is the last question I will ask before the break, but it will seem at least from this correspondence that the reason for the visit of the Disability Services Commission on this occasion was because the plight of - I withdraw that. The situation of these children had been bought to their attention by the Human Rights and Equal Opportunities Commission. Do you see that?
MS McPAUL: Yes. That is written here. I think also it points out a little bit further on that in the view of this particular letter writer anyway the feedback that we've received was - that the children apparently were not disabled enough to qualify for some of the special services available from that Commission. So - anyway, for what it is worth, there does seem to be a view expressed there.
MR WIGNEY: It would seem somewhat surprising for you having regard to what we have heard this morning about this condition?
MS McPAUL: Well, it may go to questions of assessment by some individual in another agency. I'm not saying that that is necessarily the view that we share here.
MR WIGNEY: That might be an appropriate time, Mr Commissioner.
DR OZDOWSKI: Could I ask Counsel Assisting to give me any comments you wish to make?
MR WIGNEY: I thought we hadn't finished with ---
DR OZDOWSKI: Yes, yes. I think Counsel Assisting the Human Rights Commission has finished his questions. We have ---
MR BROMWICH: Have you finished with this topic?
MR WIGNEY: I haven't finished the case ---
MS McPAUL: Have you finished with this case?
DR OZDOWSKI: No, no, not the topic but just we are adjourning for the break to have a coffee.
MS McPAUL: Yes. So there will be more questions on this case?
MR BROMWICH: There is going to be more questions from Counsel Assisting on this topic.
DR OZDOWSKI: Yes, that is right.
MR BROMWICH: When Counsel Assisting is finished, I will have my ---
DR OZDOWSKI: Okay. In this case, before we adjourn, one more issue. When you referred at the start of today to alleged sarcasm, you said that we have got very senior Departmental officers appearing today and that proper respect should be shown to them. I asked Counsel Assisting to consider the matter. Now, could you put please for the record identify the substantive level of the officers attending?
MR BROMWICH: Sorry, can I ---
DR OZDOWSKI: Substantive levels of the public service of the officers attending.
MR BROMWICH: You want me to identify what ---
DR OZDOWSKI: What levels in the public service, because you used the expression very senior Departmental officers and what I'm asking is to identify the substantive level of these people.
MR BROMWICH: I understand in relation to the current witnesses, all the witnesses?
DR OZDOWSKI: The current witnesses.
MR BROMWICH: Both the current witnesses are Assistant Secretaries. I think Ms McPaul is an acting Assistant Secretary.
MS McPAUL: That is right.
MR BROMWICH: But both of current - the two women witnesses in front of you, Commissioner, are assistant secretaries. That is their current positions.
DR OZDOWSKI: So what is this substantive level of Ms McPaul?
MS McPAUL: Senior Executive Service position.
MR BROMWICH: Senior Executive Service position. Ms McPaul is an assistant secretary but I think currently acting in that position. Is that correct?
MS McPAUL: That is correct.
MR BROMWICH: Ms Greaves is an Assistant Secretary of the Detention Policy Branch.
DR OZDOWSKI: The most senior officer would be, in the Department, the Secretary, I would assume?
MR BROMWICH: The senior officer in the Department
DR OZDOWSKI: The most senior officer is the Secretary?
MR BROMWICH: Yes, and Ms Godwin is a Deputy Secretary of the Department.
DR OZDOWSKI: Yes. So how many levels are there between Ms McPaul's substantive position and the Secretary's position?
MR BROMWICH: I think you usually have First Assistant Secretaries and Deputy Secretaries and then the Secretary- yes.
DR OZDOWSKI: Okay. Thank you. Now we can adjourn.
SHORT BREAK [10.05am]
RESUME [10.25am]DR OZDOWSKI: Okay. So the session is open.
MR BROMWICH: Commissioner, I understand there may have been some lack of clarity in the answer I gave you as to the ranking of these officers, Ms Greaves and Ms McPaul - Ms Greaves is a substantive Assistant Secretary of the Department. Ms McPaul is an acting Assistant Secretary. The other person who was at the table but was not taking an active part in answering questions, Mr Kelly, he is not an Assistant Secretary. He is a director which is the next level down. In terms of the comments I made earlier, all three are nonetheless senior officers of the Department.
DR OZDOWSKI: So they acknowledge this? Thank you.
MR WIGNEY: Just moving on and I will try and be as brief - I will try and do this as quickly as possible but please slow me down if you want me to refer to any other document or passage but I was going to firstly just take you back to document at 102 of the bundle. Really just to point out part of the reason as we've said is that the Department refers in its submissions concerning dealing with children with disabilities to the fact that these children participated in a horse riding scheme and that would appear to have commenced - from the note at the foot of this page, some progress notes in relation to one of the daughters to have commenced some time in June of 2002.
MS McPAUL: That appears to be the notation there. I'm just double checking for you whether we have any other dates. I think the horse riding for the disabled was an eight week course that actually commenced some time earlier in May and probably finished some time in June.
MR WIGNEY: Now, just trying to go through these documents as quickly as we can whilst doing justice to them. If you go to page 60, please. You will see that fax from ACM from a doctor, it appears, employed by ACM, to another doctor and it is relating to these children and one can see about three quarters of the way down the page you have referred, of course, to the difficulties in diagnoses and we take that on board but the doctor who authored this fax suggests that if a definitive diagnosis could be provided, that would be very helpful.
I mean, the point is that this is almost two years after these children have been in custody. It is a bit of an understatement to say that it would be helpful to have a diagnosis, is it not?
MS McPAUL: The children have been in detention. I think we've explored at some length this morning the difficulties in obtaining a diagnosis from specialists in relation to this case. I think the information we are seeing here is consistent with what we've already mentioned.
MR WIGNEY: Just moving forward and I really - at some stage you are aware that this Commission raised some concerns regarding the way in which this family was - or rather the children with disabilities were being dealt with in the Port Hedland facility. I wanted to simply direct your attention to a document at page 44 of the bundle which would appear to be the ACM psychologist's response to the concerns raised by the - this Commission. 44. I simply - I draw that to your attention. It may - I don't propose to go through it. It is a lengthy and detailed document but now is your opportunity to say anything in relation to it if you wish to.
MS McPAUL: I may have some further remarks in relation to this document but I will - let us see what you would like to ask about it first and then I will supplement it with anything else I need to put on record.
MR WIGNEY: Can I just direct you then to one passage on the - in the report by this psychologist? It is at page 46 and it is picking up with the topic that I raised with you shortly before the break about the mother and the author of this document indicates on page 46, it is the second last paragraph of the letter or memorandum:
In closing, my concerns with the[family] are not for the three children with special needs but for their mother and older sister, as my reviews( weekly, when I am at the centre) indicate that it is they who are displaying signs of lowered mood and general deterioration in presentation.
So it would appear that the mother at least was, to put it colloquially, her mental state was going downwards as a result of the pressures dealing with her children.
MR BROMWICH: With respect, Commissioner, that is not what the document says.
MR WIGNEY: Well, her mood and general deterioration and presentation.
MR BROMWICH: But that does not - my friend is making a causal connection there which it does not say.
MS McPAUL: It does not say what her - yes. It says that she is displaying signs of lowered mood and general deterioration in presentation but I don't believe that there is a direct connection made or a reason specifically given. It says it is difficult to conjecture.
MR WIGNEY: Well, one way or another, we dealt with in some length on Tuesday in the context of the family's topic how, in our submission, the detention environment undermines the ability of parents to deal with children in any event and that - whether it is the detention environment that is causing the lowered mood and general deterioration in presentation or whether it is specifically the pressures with dealing with the children, the fact is that there is an indication here that the parent, the mother, is starting to lose the ability to look after these children, right?
DR OZDOWSKI: In a way this was the advice I was getting during my visit to them when I met all the family. The official advice from ACM and the Department was that the mother had deteriorated to such a level that she couldn't look after the children any more. So basically daughter 1 was looking after the children.
MS McPAUL: Look, that is my broad understanding as well, that looking after these particular children is a very demanding task but as to what other factors might go to the make up of the mother's mental health, I'm really not in a position to say. As we indicated on Tuesday, there are any number of factors that might go to that and I think also the - again with this family as with some of the others that we talked about on Tuesday, the Department had determined back on 24 May 2001 that this family did not have refugee claims that were substantiated and therefore were not eligible for the grant of protection visas of one kind or another in Australia.
So again the choice to bring the detention period to an end lay within the capacity of the family and that they could choose at any point from then on to return to their home country and so far that has not been the case.
DR OZDOWSKI: But then possibly we are returning to the argument we had the other day about whether the mother could make an informed choice, given her current state of mind.
MS McPAUL: Well, we are talking about a period now spanning 18 months and I think at very many points in that time she would have been in a position and possibly as of today to make that decision. There are other members of her family, in the extended family group with her in the centre, so it is my understanding, that she would be in a position to make such a decision.
MR WIGNEY: Just trying to bring this case study to a halt. If you can go through to page 62 of the documents, please.
MS McPAUL: Are we still looking at that particular document, Mr Wigney?
MR WIGNEY: Yes, of course. If you wish to ---
MS McPAUL: Page 46 of that particular document, the third last paragraph where the particular psychologist is saying that over the past 12 months that they had been involved in contact with this particular family. The psychologist had noted a significant improvement in global functioning and the well-being of the three children with special needs. In particular, there has been a dramatic improvement in the inter personal functioning, social skills and general well-being of two of the children.
It goes on to say towards the end that the social capacities of the children, I guess, have improved. He is saying that one of the children had previously rarely made eye contact, acknowledging a greeting or a smile or verbalise.
This child is now consistently making eye contact, actively engages in appropriate social greeting behaviours without prompting and willingly verbalises and
saying that the aforementioned behaviours, the lack of eye contact and verbalisation and so on, are common in females with - reference here is to Fragile X -but to conditions…
So I think with the point that is being made there is that there has been some active intervention with the family over a long period of time as we pointed to and the assessment of the psychologist at the centre is that there had been some improvement following that process of interaction with the children.
MR WIGNEY: Can I now just take you forward to pages 62 and 63 of the bundle. Now, you will see that there are two letters there at 62 and 63 being letters from the doctors in the employ of the East Pilbara Health Service and it would appear that that health service had been engaged at least by August 2002, that is shortly - just over two years - after they were first taken into immigration detention and I really just wanted to direct your attention to two things. Firstly, it is apparent that still at this stage, that is some two years later, there are still diagnostic steps being taken ---
MS McPAUL: Yes. That is ---
MR WIGNEY: But in relation to - sorry?
MS McPAUL: That is our understanding. There was a continual process of, as I said, eliminating various possibilities.
MR WIGNEY: There is a reference in the second of those letters, that is the one dated 5 September 2002, to one of the children who is the, I think, the son of the elder of the two sons having speech difficulties and going to a speech pathologist.
MS McPAUL: Yes.
MR WIGNEY: Now, that is the first mention that we can see of visits to a speech pathologist. Are you aware of whether any earlier steps were taken in relation to testing speech and speech difficulties and speech pathology?
MS McPAUL: I'm just checking the notes that I have here.
MR WIGNEY: You can take that on notice if you need to do.
MS McPAUL: They are notes that I have indicate - I don't know whether that is the date that you are referring to but I think it is the same child was taken to a speech pathologist appointment in September 2002. Is that - yes, that is consistent with that document. Throughout the period of 2002, it is my understanding that the children were seen by a variety of paediatricians, paediatric registrars, a renal physician at the Department of Nephrology, a paediatrician at the Princess Margaret Hospital and an audiologist in Pilbara. So there was an ongoing process of seeking advice about the particular conditions for the children throughout the course of the year.
MR WIGNEY: Now, really the final issue I want to address in relation to this case study is this, that as a general proposition there are no administrative or regulatory difficulties involved in moving a detainee, be it an adult or child detainee, from one of the immigration facilities to another. That is correct, isn't it?
MS McPAUL: Well, there are a range of considerations that need to be taken into account for the movement of detainees. Operational needs, other factors going to the access that they might need to their legal team or any other community support or networks that they may have formed around the centre where they might be. There also needs to be consideration given to the practical arrangements. It is possible at each of the centres and I guess in this particular case, there is a large family group more than just the mother and the three immediate children with disabilities.
I think we have mentioned that there is a group of seven family members. So it is a - in theory it is possible to move them. In practice, there are many considerations that would need to be taken into account to effect a move to another location.
MR WIGNEY: Operational needs. What do you mean by that?
MS McPAUL: Well, yes. I mean, whether the kind of - you know, which other centre might be best chosen for the family group. It would need to be one perhaps where there was room in a family-style accommodation unit. There are a range of things like that that would need to be worked through, depending on the configuration of other family groups at any other prospective cen
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