TranscriptCreator Web viewMR McAVOY: Good morning Commissioners. Mr Morrissey is here and will take the first witness, Mr Ferguson for the day. However, there was a piece of CCTV

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TRANSCRIPT OF PROCEEDINGS

O/N H-762183

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

9.37 AM, THURSDAY, 23 MARCH 2017

Continued from 22.3.17

DAY 20

MR P. MORRISSEY SC, appears with MR P.J. CALLAGHAN SC, MR T, McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR P. BOULTEN SC appears with MS P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR S. O’CONNELL appears for AD, AV and AN

.ROYAL COMMISSION 23.3.17 P-1700©Commonwealth of Australia

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COMMISSIONER WHITE: Good morning, Mr McAvoy.

MR McAVOY: Good morning Commissioners. Mr Morrissey is here and will take the first witness, Mr Ferguson for the day. However, there was a piece of CCTV footage which was tendered on an open basis yesterday, and it was done in closed court. It was always the intention to play that footage in open court, and I’m here today to do that, and I understand it’s cued and ready to go. And if I might be permitted to - - -

COMMISSIONER WHITE: Certainly. Yes.

MR McAVOY: So this is the footage with respect to BH, Commissioner.

COMMISSIONER WHITE: Which is exhibit – was this 120 or 121?

MR McAVOY: If the Commissioner recalls, I think it’s 121, it was conducted by Mr Goodwin while I was in the remote room, but - - -

COMMISSIONER WHITE: Indeed. I was – just for those who are interested, just to identify which of the two exhibits it is.

MR McAVOY: If we could play the clip.

COMMISSIONER WHITE: Thank you.

VIDEO SHOWN

MR McAVOY: And there’s the second clip, which is part of the same annexure, showing a different angle of the same event.

VIDEO SHOWN

MR McAVOY: Commissioners, the CCTV footage speaks for itself. It is – there is some reference in the re-redacted statement of BH which was tendered yesterday, but perhaps it’s important to note, in terms of time scale, that that footage is from 12 December, which is the same day on which this Commission was sitting last year, 12 December 2016 hearing evidence from Mr Voller. I understand the first witness is ready to proceed.

COMMISSIONER WHITE: Yes. Thank you.

MR McAVOY: Thank you, Commissioner.

.ROYAL COMMISSION 23.3.17 P-1701 ©Commonwealth of Australia

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COMMISSIONER WHITE: Thank you, Mr McAvoy.

MR MORRISSEY: Thanks. Good morning, Commissioners. I call David Ferguson.

COMMISSIONER WHITE: Yes, thank you.

<DAVID WILLIAM FERGUSON, SWORN [9.43 am]

Thank you, Mr Ferguson, kindly be seated. Thank you, Mr Morrissey.

<EXAMINATION-IN-CHIEF BY MR MORRISSEY [9.43 am]

MR MORRISSEY: Thanks very much, Mr Ferguson. Mr Ferguson, would you state your full name, please?---David William Ferguson.

What’s your current occupation?---I am currently the director of professional standards with NT Correctional Services.

For the purposes of this proceeding did you produce a statement?---I did.

And were there certain annexures, matters that you annexed to that statement by way of professional manuals and other – sorry, by way of guidelines and policies?---Yes, there were.

Have you had the chance to read that statement recently?---I have.

And what do you say as to whether that statement is true and correct?---That statement is.

Thank you. Commissioners, I tender that statement.

COMMISSIONER WHITE: Exhibit 124.

EXHIBIT #124 STATEMENT OF DAVID WILLIAM FERGUSON

MR MORRISSEY: Thanks very much.

Mr Ferguson, as part of my examination, what I’m going to do is take you to, if you like, several reports that you did. I’m also going to ask you about some general

.ROYAL COMMISSION 23.3.17 P-1702 D.W. FERGUSON XN©Commonwealth of Australia MR MORRISSEY

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structural matters. That will be the extent of my questioning and then you will have some questions from other members of counsel?---Thank you. Okay.

If you feel the need to look at the statement just indicate to that effect and I’m sure that can be accommodated. Thank you. Now – so Mr Ferguson, I just want to show you a document, please, and could exhibit supplementary tender bundle 222 be brought up. You’re about to be shown a memorandum headed To The Commissioner from director PSU dated 19 September 2014. Now, do you see on the screen in front of you the first page of that memorandum?---Yes, I do.

Now, is that a memorandum that was compiled by you as director of the PSU?---It was.

And was it dated 19 September, as this particular memorandum shows?---Yes.

I won’t move from screen to screen yet. I’m going to take you to parts of it. The – were you shown an unsigned copy of this recently?---Yes, I was.

And have you made efforts to see if a signed copy can be found?---We did, yes, originally when the first letters to produce arrived. We – as part of the search we suggested for all relevant information for the Commission, we searched for this. We could not find a signed copy.

Alright. As far as you’re aware, though, this copy is identical to the one you ultimately signed?---Yes, it is.

Alright. And so was it signed on 19 September?---Yes, it was.

And ultimately it was communicated to your superiors?---Yes.

And how was that done? Was that by email or by personal delivery?---No. It was handed to the Commissioner at the time.

Was it – as well as being handed to the Commissioner at the time, and when you say “at the time” do you mean on 19 September?---I would imagine it would be the 19th or the 20th, yes.

Yes. Alright. As well as being handed to the director, was it emailed to the director as well?

COMMISSIONER WHITE: Sorry, you said to the director.

MR MORRISSEY: Sorry, the director, I apologise. Yes, let me rephrase that.

To the Commissioner, was it emailed?---I – I don’t recall, I’m sorry.


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Do you recall whether it was – whether a copy was provided to any other person by you or at your behest?---Not that I can remember, no.

Alright. And can you, just finally can you recall whereabouts it was that you actually handed that to him?---It would have been in head office.

Alright. And was your office placed quite physically close to where – to his office?---Yes.

Was it several doors down the corridor?---It was – within the Office of the Commissioner, there is a number of smaller offices in that area and the Professional Standard Unit is based in the Office of the Commissioner.

Yes, very well. Thank you. Alright. Now, I just want to take you to some aspects of this report. Now, who was it that requested you to undertake this review?---The Commissioner at the time.

And when was it that he asked to you undertake that review?---I can’t give you an exact date, but it would have been probably a few weeks prior to this, a week or a few weeks prior to the date.

If we locate matters by reference to other incidents, you’ll recall that on 21 August the tear gassing incident occurred at the old Don Dale centre?---Yes.

Was it after that that - - -?---Yes.

- - - the Commissioner asked you? And approximately – appreciating you can’t recall exactly – approximately how long after? Within the first week or subsequent to that?---I couldn’t answer that accurately, I’m sorry.

Was it a verbal instruction or was it a written request?---It was a verbal instruction.

Alright. And can you recall where that instruction took place?---No, but I would imagine it would have been in the Office of the Commissioner.

Very well. Now, let me just – you were – in order to undertake that review, now, you have page 1? I’ve got some questions arise from page 1. Commissioners, what I mean to do is take the witness through this report, not reading every part of it, but take him to particular parts and ask him for comment.

Now, can you just direct your attention here to the heading, it was a Review of Issues in Youth Detention; is that correct?---That’s correct.

And that indicated that it was somewhat broader than some of the audits that you undertook from time to time?---That’s correct.


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Yes. Now, the information that you relied upon is set out in the second paragraph. Here you said:

The information relied on in this review was obtained through discussion with youth justice staff, prison staff, other NT DCS staff, detainees, audio and visual recordings.

There you were setting out the sources of your information; correct?---Correct.

You were also able to rely upon your recent experience in terms of investigations that you had undertaken for a staff training audit back in April of that year?---Yes. That would have been undertaken not necessarily by myself, but by the unit, yes.

Yes. And when I refer to yourself, I’m really – perhaps I should be clear. I may do that compendiously and it’s right for you to point out, as you just did, that it might have been done by Mr Grenfell or someone else?---Yes.

But under your direction. Very well. Thank you. Now, you made reference to visual recordings. Did that set of visual recordings include what might be referred to as the fruit throwing episode?---It did.

That was a fruit throwing episode involving two Youth Justice Officers named Kelleher and present with him was Mr Zamolo?---Yes.

And your conclusion was, as you put in the Purpose section, that the information highlights a number of serious issues. That’s what you deal with in the bulk of the report?---That’s correct.

Very well. Thank you. Now, just to move down that page, one of the – one of the issues that you highlight is at the top of the second last paragraph:

The training of detention centre staff has been described as inadequate by experienced officers.

Now, are you able to now say who those experienced officers were?--- ..... they, in their opinion the training being offered was not adequate, and this was – possibly led to or contributed to some of the incidents within the centre.

Yes. Was the issue highlighted, just to - - -

COMMISSIONER WHITE: Can I just interrupt, Mr Morrissey. I think you were asked could you recall actually who they were, and you’ve said compendiously there were a number?---There were a number, Commissioner.

Can you identify any of those who raised concerns with you?---Not immediately off the top of my head, I can’t. There would have been – Mr Clee would have raised it with me.


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What about Mr De Souza who was doing a lot of training?---No, I didn’t speak to Mr De Souza in the course of this.

MR MORRISSEY: Just – sorry, go on?---And I’m not terribly sure who else there were. There were a number of youth workers that I’ve spoken to over the time. I also, through my own observations, believed there was some lack of training.

I’m going to take you to it later – or shortly after this document but you had, in fact, completed a training audit in April already; is that correct?---If you say so.

I’ll take you to the document. Very well. I won’t jump into that. You indicated that a further issue, and this is still in the same paragraph:

What training that is provided is brief, with no ongoing practice or renewal of learned skills.

Now, with respect to that comment, did that pick up the issue that there – although there was some brief training, there was a lack of drills or a lack of reinforcement and a lack of refreshers and development?---That was the impression I was given, yes, the information.

Thank you. You also highlighted on that first page that:

There’s a breakdown in communication methods and skills used by staff when dealing with offenders.

And you go on to refer to swearing and the use of familiar terminology like “bruz” and “cuz”. Was that a matter that was raised with you by numerous staff, both Youth Justice Officers and the senior management?---That was raised with – by a number of staff. It was also observed by myself when I spoke to detainees. They would refer to me as “bruz”, which is not appropriate.

No. Very well. Thank you. Now, I’m not going to take you to each thing, but would you mind – could we please move to the next page, page 2, and I can take you to the paragraph beginning Detainees and Staff.

Now, here you’ve noted:

Detainees and staff inform that there’s no consistency between different shifts. One will allow you to do something when the next one doesn’t.

You see that paragraph?---I do.

And you’ve highlighted two bad consequences of that. One is that it has a bad effect on the offenders, because they don’t know what the rules are, and secondly it makes it very difficult for the staff because it allows certain young people to behave in a manipulative way and play staff off against each other?---Yes.


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And you noted – it’s a theme throughout this, but I’ll ask for your comment, if you like, you noted that there seem to be a general feeling of disempowerment amongst the staff that they didn’t know the rules and they felt shy or concerned about intervening in situations, because they were unsure of what the rules and procedures were?---I’m not sure if it’s actually unsure of what the rules and procedures were, although I note in this review I did say that there had not been a procedures manual implemented since 2011, I think.

Yes?---I believe a part of it was that staff, because they weren’t trained, they were lacking confidence in dealing with situations.

Yes?---And they were also feeling under pressure because of added scrutiny they felt they were under from external agencies, such as the Children’s Commissioner.

Yes. Alright. You went on to note, the next paragraph:

Offenders have also complained that YJ officers lie to them and trick them into doing things.

And various examples were given. And you went on to draw this conclusion:

Promising to do things and not following through with them will cause anger and resentment among the detainees.

Now, just on that, was that conclusion one that was relevant, as you saw it, to the commencement of the tear gassing incident where those people who ultimately were tear gassed had been held in the BMU for a significant period of time and not been provided with certainty about their management plan?---I couldn’t say. It may well have contributed, but their particular – I remember what I was talking about then was a general sense that this is what has been going on, and it was also an observation that you can’t expect people to respond positively if you don’t follow through with your word. You can’t lie to people and expect them to behave or respond positively.

You went on in the next two paragraphs to deal with another issue, which was the emergence of what you described as a boys’ club mentality and in particular with reference to a group of male Youth Justice Officers involved in martial arts fighting who were called, I quote, Jimmy’s Boys. And the complaints about those were that, firstly, detainees alleged that they teased and threatened them; is that right?---That’s correct.

And it was also a complaint that they were said to spend most of their time sitting around talking rather than interacting with detainees; is that right?---That’s what I was advised by other staff members, yes.

Yes. So you had complaints about this group called Jimmy’s Boys both from the detainees that you spoke to and from other staff members?---Yes.


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And so although you would – yes, okay. Thank you for that. Now, did you hear in respect of this group, Jimmy’s boys, did you ever hear the terminology used of the Don Dale Turtles?---No, I have not.

Alright. Now, you noted at the bottom, second last paragraph there:

There has been no current procedures manual approved for detention centre since 2011 despite audit recommendations. It is difficult to run any institution without clear procedures.

?---Yes.

Now, were you aware that in 2014, at some stage, a draft of a Standard Operating Procedures went up on the staff internet reflecting a draft of an updated Standard Operating Procedures compiled by Mr De Souza back in 2011?---I was aware that they’d been working on a procedures manual with supporting SOPs for a number of years. I have never actually seen a completed document and I do not believe that it was ever signed off as being completed.

No. No. And I was – do you recall seeing a document marked Draft with a green draft - - -?---No, I don’t.

Very well. A further complaint, this is at the bottom of page 2 and then flipping over to page 3 was that:

Staff inform that management does not provide direction or leadership and don’t listen when issues are raised. The workplace has a very negative mindset. People don’t want to go to work and when they do they can’t get out quickly enough at the end of their shift.

Now, was that based upon what you were told by various staff members?---Yes.

Indeed, and you reported what I suggest is a fairly worrying situation that staff had ceased to complain to the general manager or the assistant general manager as nothing was ever done and some staff said, “There’s no point complaining to the assisting general manager as Jimmy protects his boys”; is that correct?---That’s what I was advised.

Yes. That’s the complaint you received?---Yes.

And you took “Jimmy” to be a reference to Mr Sizeland?---I did.

And you had comments from some staff saying:

The whole place feels like it’s falling apart. There’s no procedures, no support from managers, the general manager won’t answer questions, just refers you to


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others or just doesn’t get back to you. You get told to “just make it happen” with no guidance on how to do it or what you can and can’t do.

Now, that – you’ve put that in a quote, but that reflects what you were told in various different ways by different staff; is that correct?---That’s right. Yes.

Thank you. Now, moving on to the – at page 3 you reported on the current situation and can I ask you, was the reason for doing that that you understood Mr Middlebrook to be asking for a modern, if you like, point in time update as to how things were working in the situation post the tear-gassing and post the transfer of the young persons into the temporary facility at Holtze?---Yes. I believe, at the time, that Mr Middlebrook had concerns that his direction weren’t being followed.

Yes?---He requested at the time that we – that we look at this whole thing, how did we get to this stage, how – what was currently going on out there and what was being done to address it. So an overall picture of the – of what was happening in youth detention at the time.

Yes. So in – this is my phrase – it was – Mr Middlebrook was asking you to find out “How did we get here? How did we come to this”?---Yes.

And because it was your perception, which you shared with Mr Middlebrook, that the situation was disastrous at that point?---It was not good.

Could we go through some of the points in the Current Situation heading here. You noted some specifics in this list, and I’ll just take you to some of those. You noticed that the lock on a certain prisoner’s cell had been left unsecured at the Don Dale centre, which allowed the escape?---Yes.

And that’s something that you – did you go down yourself to the BMU to have a look, the former BMU?---I did. Post the incident - - -

Yes?--- - - - I was there. My – one of my staff members actually conducted the review into that incident.

Yes. Can you – which staff member was that?---Mr Grenfell.

Thank you. Now, secondly you noted as follows:

Detainees claim that the treatment by staff inspire them to wreck the cells. This is supported by CCTV footage from a few days clearly showing a YJO throwing fruit at a detainee in the cell, then entering the cell and attempting to cover the camera before apparently threatening to bash the detainee.

Just about that one there, did you, in fact, have an opportunity to view that CCTV footage?---Yes, I did.


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And it did really depict Mr Kelleher attempting to cover the camera?---I believe so.

Very well. You also noted contributing issues, two detainees housed in a single cell. That’s within the BMU, isn’t it?---That is.

Yes, thank you. You noted a failure by YJOs to respond immediately. You noted a failure to keep the cells under observation by a physical presence in the area when the in-cell cameras had been covered, and you noted that there had been no attempt made to talk them down before calling for intervention. Now, did you base those conclusions – when I say “you” I mean the investigation generally, yourself and Mr Grenfell working for you – did you base that on a collection of materials, discussions with staff and viewing the footage?---Yes.

And also discussions with detainees?---Yes.

And did you go on to make some other findings about what was the background to the incidents that occurred at HYDC, that’s the Holtze temporary facility?---That’s correct.

Just to be clear, I appreciate you know this, but it probably needs to be spelled out, the young persons had been relocated in a hurry after the tear gassing incident from the old Don Dale to the Holtze facility pending the readying of the Berrimah facility for use?---That’s correct.

Now – and you noted here that:

The incidents at the Holtze detention centre were also caused when detainees reacted to being spoken to poorly, not permitted to watch TV, there was nothing for them to do, they were not given exercise. This made them angry and frustrated.

Again, you base that on a collection of materials, what detainees said, what staff said?---Yes.

And what you could see yourself. Alright. Now, there’s a number of other matters, and if there’s ones that you felt should be highlighted, you’re a professional PSU person, we’re happy for you to say something that should be said. But I mean to take you on to a couple of specific matters from here. Under the heading of – sorry, perhaps if you look at the third dot point on page 4. Can we go to page 4. Now, you noted here some issues at “Max”. What is the reference to Max?---Max at that time was where the – the extra secure area. I believe that some of the detainees who had escaped from the Holtze holding centre, while they didn’t actually go out of the wire, but they had escaped from their room, were moved to the prison for a while. They were held there.

The “max” is a reference to the adult prison?---I think so.


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And what you – what was reported to you was, concerning you concerning their treatment at max, at the top of page 4:

Detainees were not given breakfast until after 1100 hours, and then only at the insistence of staff, is that correct?---Yes.

You noted reports of YJOs withholding food, bedding, and clothes, as a punishment?---That was a general statement of the whole thing.

Yes, very well:

Detainees not being released from cells for exercise. Youth justice management failing to attend the max section to advise staff of what to do or to check on the welfare of the detainees for at least two days.

?---Yes.

I’ll take you to an email a bit later on where that seems to have been discussed between yourself and Mr Middlebrook. Do you recall discussing that specific issue with Middlebrook?---I had many discussions over – during this time with the Commissioner.

Yes. You don’t specifically remember that one?---Not specifically, no.

That’s okay. Well, I’ll take you to that in due course. Let’s press on with this though. And you listed a number of other issues that arose while those children were in max?---Yes.

Coming to the heading Other Issues on page 4 you noted that, “Some YJOs – JOs have no concept of following rules or policy.” Now, was that something that yourself and Mr Grenfell came to the conclusion of having spoken to a number of the YJOs and hearing what they said and others said about them?---It is. It’s also through observation from Mr Grenfell and myself. When we’ve attended the centre we have observed YJOs not performing as one would expect, yes.

Another thing that you noted was as follows:

The group known as Jimmy’s Boys do not perform the duties of their positions. They bring mobile phones to work, ignore directions from other more senior staff, as they know they won’t be held to account for it, corrupt new staff to their ways of operating, talk to detainees about other staff and run them down to the detainees, are late for shift or leave early with nothing done about it, and when criticised by supervisors become abusive.

Now, was that based upon the comments of other staff and - - -?---Yes, it was.


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- - - detainees. In a sense you took it, if you like, a holistic approach to this investigation. You gathered the info from all of the sources that we identified earlier?---Yes.

Very well. And you noted also that there seem to be some preferential treatment given in rostering to Jimmy’s Boys?---That was an allegation that was made.

Yes. Alright. Thank you. And you also had – it was – other issues that were identified to you included:

Some staff on night shift hiding in offices and looking at Facebook instead of doing their duties.

Is that right?---That’s correct.

That there were record keeping failures, the daily census not being done, reports not completed by the end of shift as required?---Yes.

There were concerns about YJOs bringing in mobile phones to the Holtze facility via the sally port?---That’s correct.

I’ll just jump out of this for one second. Subsequently, it has been clear that some YJOs did bring mobile phones in and use them inappropriately inside the building?---Yes.

You also noted that:

Senior Youth Justice Officers and shift supervisors are failing to supervise staff because they get no support from senior management.

?---That’s what we were advised, yes.

Well – and that’s something that you did – it appears that you’ve commented upon. That did appear to some extent to be the case?---Yes.

Yes. Alright. You also noted:

No enforced programs in place for detainees. They don’t clean their rooms or make their beds anymore, let alone the other basic chores they used to perform.

?---That’s correct.

Now, that was reported to you, but you’re also experienced – before you came to be head of PSU you had some – you might say more pastoral experience at Wildman River Camp?---I was a youth worker and deputy superintendent with juvenile justice for 10 years.


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So when you’re dealing with this matters you’re not doing so, in a sense, as a naïve outsider who’s merely looking at compliance. You’re looking as a person with many experience including direct hands on experience with many young people?---I would hope so, yes.

Yes. I do mean to ask you later on a little bit about that if I could, but let’s persist with this. You reported - - -

MR O’MAHONEY: I hesitate to rise. Can I raise one thing out of fairness to the witness, and I will be very brief. As I understand it, and this might be a subject for some questioning of the witness that might assist the Commission, the way the report is structured, the bullet points that my friend is going to at the moment are a summary of allegations that culminate in the conclusions that fall beneath them. Some of the questioning – the language is in terms of “I note”, or “you noted that”, and the witness has a couple of times indicated “that was what was said” or” that’s what I was told” or “that’s what was alleged”, but I wouldn’t want it to be thought that they are in themselves conclusion, those bullet points.

COMMISSIONER WHITE: I think I understand that and I’m sure Commissioner Gooda does as well, because there is the summary at the top and this is the supporting evidence that flows underneath it. That’s how I’m reading it, and - - -

MR MORRISSEY: I agree. I think we’re all on the same page about that.

COMMISSIONER WHITE: Yes, and I think, Mr Ferguson, you understand that because Mr Morrissey cleared the ground with you in the beginning to talk about your sources of information?---Yes, Commissioner.

So you’re comfortable with the questions that are being asked? You don’t feel that you’re not being given an opportunity to reiterate that – your - - -?---No, I’m comfortable, Commissioner.

MR MORRISSEY: And perhaps, Commissioner, we’re dealing with a witness who is able to point out if there is such a – well, there’s no difficulty with you pointing out if you think you’re being – the question leaves you open to misrepresentation, Mr Ferguson. All right. So you’ve also noted reports of allegations, and you make it clear to use the word allegations, that some staff are regular drug users or dealers?---That is information that comes to hand occasionally.

Yes. That’s right.

COMMISSIONER WHITE: We’re not – are we not going to explore that any further, Mr Morrissey, not here?

MR MORRISSEY: Not in this particular section, but shortly.

COMMISSIONER WHITE: Right. Thank you.


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MR MORRISSEY: But you simply listed that there as an allegation, you used the word allegation because you wanted to make it clear that’s all it was?---That’s correct.

It was a report, but you didn’t have - - -?----It was information received but, as you’re aware, if there’s no evidence behind that, it still remains an allegation until it’s proved otherwise.

And it may have some intel or intelligence value, in terms of managing, but it certainly doesn’t found a basis for an investigation on its own?---That’s correct.

It might be third or fourth hand?---That is correct.

Alright. Thank you. You noted that – or you noted reports that:

A lot of staff do not follow or care about directives, SOPs, they have a near enough or good enough attitude or just do what they want.

Again, that’s based upon the same sources that you referred to. And the final bit I want to take you:

Senior management promised detainees in the BMU they would come and talk to them, and this did not happen.

Once again you base that on reports from the detainees and from staff?---That’s correct.

Thank you. I just want to take some conclusions that you drew from all of that. You concluded:

The issues revealed in this review appear to show a fundamental lack of awareness of the staffing problems in detention and the complete failure of centre management to address or attempt to address the issues. While the current situation has developed over a number of years, it is the responsibility of current management to resolve the issues, a large part of which could be done by active leadership and direction, of which according to staff there is none. It appears that the issues have been allowed to drift along and no real effort has been made to create positive change in the centre as a whole for a very long time. This has resulted in staff apathy and ongoing resentment and consequent poor behaviour from detainees.

I’ll just take you to the next paragraph:

It should be obvious to anyone that if you treat youths like animals by not communicating, threatening, belittling them, withholding food and other entitlements, they will react in an aggressive way. Most of these incidents were most probably entirely preventable with the use of appropriate communication


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and open interaction with the detainees, combined with a regular routine to keep them occupied.

Now, firstly, that’s the conclusion that you put in the report?---Yes.

I want to ask you a question about the type of language that you’ve used here. You’ve seen many reports within your career in the public service?---I have.

You’ve seen a lot of use of managerial language and the use of terminology that seems to be difficult to understand for a layperson in terms of how things are managed?---Yes.

This report of yours, I suggest to you, is written in a heartfelt, direct, and plain English way. Do you agree with that?---It was written as honestly as I could provide at the time, yes.

Yes. And not only did you make no attempt to obscure matters, you wanted it to be very clear so that the Commissioner would have the facts before him and he could act in a way appropriate to his office?---That’s correct.

And that, indeed, was your duty as you understood it?---Yes.

That’s why you phrased it as clearly as you did?---Yes.

Alright. Thank you. You also went on to note a variety of recommendations which I won’t take you to, but they’re there and if anyone needs to question about those, Commissioners, they are there to be discussed. Could I please tender that document?

COMMISSIONER WHITE: Yes. The memorandum from Mr Ferguson to the Corrections Commissioner is exhibit 125.

EXHIBIT #125 MEMORANDUM FROM MR FERGUSON TO THE CORRECTIONS COMMISSIONER

MR MORRISSEY: Thank you. I’d just like the witness – that can now be taken down from the screen. I just need to take you to this one here. Sorry, would you just excuse me one moment, I just want to juggle a document and then I’ll put it to you. So could the witness now be shown STB – supplementary tender bundle document number 83. This is the report that I referred you to earlier, and you didn’t immediately remember it, so just have a look on the screen when it comes up. You’ll see a memorandum dated 15 April 2015, Audit: Currency of Essential Staff Qualifications. Alright. Now, just looking at the heading of that, can you just have a look at that for a moment and cast your mind back as best you can? Do you recall, on the second page it’s signed by Grenfell – Mr Grenfell and countersigned by you; do you see that?---Yes.


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So this is an audit which measured, to some extent compliance with record keeping of training?---Yes, that’s correct.

And the - - -?---Core training.

Core training, yes?---Yes.

Correct. So in terms of the core training by – at the time when you did this audit on 15 April 2014 the core training was limited to the three topics that you explored in depth. First aid, qualification, PART training qualification and suicide intervention qualification; is that correct? Perhaps if – I’m sorry?---That’s correct. I can read it now. Thank you.

Thank you. Yes. Perhaps if we could just have page 2 of that document now, because some of the findings are to be found. Just take a moment to read that. I know it’s statistical, so just have a look. Now, this is consistent with your auditing function. You have listed which youth – what percentage of Youth Justice Officers have performed the relevant training?---Yes.

And the snapshot at that time was that 18 training activities had been held through the year 2013?---Yes.

I’m just going through the dot points:

Concerning qualification in PART training there were 21 of the 71 who were not qualified in that training.

Is that correct?---That’s correct.

And that is a worryingly high statistic; do you agree with that?---Yes.

Now, I appreciate you were not the training officer and you had a particular, role but you were aware, weren’t you, that that was an essential qualification to working as a Youth Justice Officer?---Yes.

When it came to the issue of first aid, there were only 27 of 71 staff that held a senior first aid qualification; is that correct?---Yes.

When it came to advanced resuscitation training, what you found was that only 13 of the 71 officers measured had maintained that qualification?---Yes.

And when it came to suicide intervention training only 33 of the 71 officers were recorded as having so trained?---That’s what it says.

Yes. And your recommendation was that training activities be prioritised to meet the requirements for maintaining 100 per cent of essential qualifications for operational staff.


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Is that correct?---That is correct.

Thank you. That can be taken down, but I tender that document.

COMMISSIONER WHITE: Yes. So the supplementary tender document 83 is exhibit 126.

EXHIBIT #126 SUPPLEMENTARY TENDER DOCUMENT 83

COMMISSIONER GOODA: Mr Ferguson, how many – looking at those records of qualifications, how many of those do you think would be essential before people even started work as a youth detention officer?---Ideally, Commissioner, all people should be trained and qualified before they start.

So those people – those numbers would have been people working in the system without any qualifications at all?---They may have been. They also may have been people who have been working for some time and the currency of that qualification had lapsed.

Alright. Thank you.

MR MORRISSEY: Yes. Thank you. Just in terms of this part of the questioning, I just would like the witness to be taken to document supplementary tender bundle 221, which is an email chain between Mr Middlebrook and Mr Ferguson. Could that please be brought up. Alright. Now, is this – do you have in front of you a series of email?---Yes.

With the heading Re Juvies and the heading is Ken Middlebrook to you, Dave Ferguson?---Correct.

Alright. Now, in order to read that correctly you’ve got to read from the bottom up?---Yes.

As you’re familiar. This is a chain of emails between yourself and Mr Middlebrook during the course of you making the inquiries that you were making; is that correct?---That’s correct.

So it’s dated the 16th and you reported – the initial part was you reporting to Mr Middlebrook that there had been a failure of youth justice management to go down to max and see what was going on?---That’s correct.

And that’s one of the things that Middlebrook – Mr Middlebrook had asked them to do?---It is. If you proceed to the next part of that email, Mr Middlebrook says that he had gone down there, and the instructions that he gave last night had only just been adhered to.


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And although you may not remember exactly the wording of those instructions, what you understood them to be was these children are now in an extraordinary position of being in an adult prison and Mr Middlebrook was wanting to ensure that in that placement they had appropriate oversight by the youth justice management?---I don’t – can’t say what he actually gave instructions about, directly, but I would imagine that it would be along those lines.

Yes. Because it was an unusual situation, wasn’t it, that you had quite young people in an adult jail?---Yes.

Even though it was in response to what was perceived to be a crisis, it was a very unusual situation?---Yes.

And yourself and Mr Middlebrook discussed it. It really did represent a failing on behalf of youth justice that you had kids in an adult jail?---I think that – that the security aspect dictated where they were being held because they had actually – from memory they’d broken out of the facility that they were being held in, and as such, they were moved to somewhere more secure.

Alright. Now, you then alerted Mr Middlebrook to the likelihood that your review will be severe on the entire management?---That’s correct.

And that was simply – that was quite a normal – when I say “normal”, that was a routine update which you needed to give Mr Middlebrook to tell him how things were shaping up in terms of the investigation?---Well, I had been conducting and gathering information for that review for some time beforehand and it would be fair to say that it was looking towards being fairly critical.

Yes. And you see the response by Mr Middlebrook there was:

It needs to be, and it will give me the opportunity to act.

?---Yes.

Did he tell you what that meant, “the opportunity to act”, did he ever explain to you what he meant by that?---I believe at the time Mr Middlebrook was having some difficulty with getting his directions, regarding what he wanted to happen in the juvenile space, to be carried out.

Did he tell you what use, if any, the report that you produced to him – what use he was going to make of that with the relevant Minister at the time?---No, he did not.

Did he speak of how he would interact with the Minister concerning your findings?---No, he did not.

Did you regard that as quite normal, that he would not discuss how he interacted with the Minister or - - -?---Yes.


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Your role was confined to reporting to him?---That’s correct.

And you had done what you could by putting a very frank and fearless report in his hands?---Yes.

What he did with that was a matter for him?---That is true. That applies to all actions by the Professional Standards Unit as a whole. We do not make decisions on what action is taken from any information we provide. That is entirely up to the Commissioner.

Alright. Thank you. I tender that email chain.

COMMISSIONER WHITE: Yes, that email trail between Mr Ferguson and Commissioner Middlebrook is exhibit 127.

EXHIBIT #127 EMAIL TRAIL BETWEEN MR FERGUSON AND COMMISSIONER MIDDLEBROOK

MR MORRISSEY: Very well.

Now, finally, could the witness just be shown tender bundle 214.

I won’t take you through this in detail, but you had a specific investigation – as part of the overall investigation, you also had a specific investigation into the fruit chucking incident; is that correct?---That’s correct.

And you produced an investigation report which is before you on the screen now?---I did.

And just to get some details about that, and just very briefly, on 16 September 2014, Mr Voller, whilst at the Darwin correctional centre, made a disclosure that allowed PSU to locate the relevant CCTV footage - - -?---Correct.

- - - concerning Kelleher, then on the 18th of that month you did locate that footage?---Yes.

And that allowed you to proceed as you subsequently did with respect to Kelleher and Zamolo?---Correct.

Thank you. I tender that document as well. Now, could I turn please to - - -

COMMISSIONER WHITE: That’s exhibit 64.214.

EXHIBIT #64.214 REPORT CONCERNING FRUIT THROWING INCIDENT


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MR MORRISSEY: Sorry.

I’ve just got some questions now, about the nature of the office, and reporting lines, and so on. So now, in terms of the nature of your office, you have, although you’ve had – there everybody – you’ve either been the manager or director of the PSU, you’ve held the role of being the head of the PSU, however it’s termed, since 2006; is that correct?---Approximately that time, yes.

Yes. And you – whatever the role is called, you have effectively been the head of that unit since that time?---Yes.

Alright. After Mr Middlebrook was appointed in 2008, you were – I apologise – after he was appointed, you reported to him steadily up until the time when he ceased to be the Commissioner?---Correct.

He had a change of role early, but he – you reported to him throughout that period of time?---Yes.

Thank you. And you had a – what you would regard as good relations with Mr Middlebrook?---I have been fortunate to have good relationships with all the Commissioners I have worked for.

Yes. And you felt that you were able to provide him with frank and fearless advice when he asked for advice?---Yes.

Now, I just want to turn quickly to the functions. You’ve described in your statement – I won’t take you to every part of it, you described in your statement that you had a role in performing standing audits and also in pursuing investigations from time to time as delegated to you?---Yes.

Is that correct? Now, just concerning the standing audits that you had to pursue, you’ve listed many of them in your statement and there are many, many different audits that you were supposed to perform?---There are.

On many different procedures within the centres?---It’s important that, I think, that the Commission realises that Professional Standards has responsibility for the entirety of Correctional Services.

By that, you’re – just to be clear, you’re referring also to adult correctional services?---Yes, and community corrections.

And community corrections?---Entire.

Are you able to say what percentage – it’s a difficult one, but just do the best you can, what percentage of time, if you like, was spent – of your overall duties was spent dealing with youth justice issues?---No, I couldn’t possibly say. It is


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considerably smaller, because of the size of the area compared to the rest of the department.

Alright. Now, turning to the audits, the audits – the standing audits, if you like, the annual or every two year audits, they are functions which are heavily document dependent?---Yes.

And you really require that the particular centres and centre management ensure that the documents on which you rely to perform the audits are properly filled out and signed off on?---That’s correct.

And if that is not done then you find yourself, to varying degrees, unable to conclude that there has been compliance?---If the audit process, which are compliance audits, if the audit process finds there are failures in record keeping that is pointed out in the audit.

And you have pointed that out in your statement at one - - -?---Yes.

At different points, yes. Were you aware of what training was available to supervisors – both shift supervisors and officers in charge, centre management at all its levels, what training was provided to them to ensure that they knew how to keep their records in various ways up to date?---No, I wasn’t, I’m sorry.

Were you ever asked or consulted as to how they should be trained?---No.

Now, likewise, were you aware of any training that was administered to Youth Justice Officers, the workers on the floor, in terms of that?---I believe that Youth Justice Officers were advised that they should be following the procedures, such as they were. There is also an obligation for Corrections staff, when they join – if you are employed with Corrections there is an obligation to comply with all the directives. A vast number of those directives clearly set out what your duties are required to be.

Yes. Now, in - - -

COMMISSIONER WHITE: Can I just ask a question there, Mr Ferguson. When you were doing the audits, did you have to hand any manuals, and we’re only concerned with, of course, the youth justice detention facilities, not the adult one. Did you have any operating manuals or staff directives or things to use as a check?---We would operate the audits against the directives that were in force at the place at the time, and they rely on ensuring that we’re complying with the legislation. So they would be operated from that to ensure compliance. As has been repeatedly pointed out, there was no up to date active procedures manual as such from 2011. That was audit reported in every audit regarding that matter. It makes it difficult to audit. However, there are still underlying directives that apply across all custodial areas including the youth space back then, and they were used to conduct the audits.


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Did you have any understanding of how those directives were disseminated amongst the staff who were required to follow them?---All the directives are contained on the internet. Staff have access to those. As to whether they were reinforced to look at them, that – I would imagine that being conducted. I don’t know, but it should have been conducted in their initial training. As to whether they refreshed their memories with that on a regular basis, I’m unable to say.

That would be a matter for centre management?---It would be.

Presumably it’s operational?---Yes.

Yes?---Correct, yes.

And I take it that directives would be issued from time to time? It wasn’t just that there were a set of directives and they didn’t change, there would be new directives?---That is correct, Commissioner, yes.

MR MORRISSEY: Prance to pick up that question, when a new directive came out that might be a new directive that applied across the entire corrections space?---Yes, it may be.

Was it a matter of centre management to bring any such new directives to the attention of staff on the floor?---When a directive is issued it is generally sent electronically to all staff. It is then the responsibility of the managers to make their employees aware.

Now, I just want to take you to - - -

COMMISSIONER WHITE: .....

MR MORRISSEY: Yes, of course.

COMMISSIONER WHITE: Just one practical thing about that: we know that, of course, Youth Justice Officers didn’t have their own offices, but they no doubt could have access to the centre management office where they could look at the computers to see - - -?---Yes.

- - - what was happening?---Yes, Commissioner. In, for example, in the youth space that was in the old Don Dale centre, there was a set of computers in the youth worker’s office that all youth workers have access to. Within that computer system, everybody has their own personal drives, etcetera, that allows them and their access to the corrections intranet which contains all the directives, Standard Operating Procedures, policies, etcetera, etcetera.

It may be a matter of - - -?---There is also - - -


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Sorry, yes, continue?---There is also generally, or there used to be, hard copies of directives and SOPs kept in those offices for anyone that wished to access them.

Now, I’m not sure that you can comment on this, but we have heard from several witnesses that the staffing shortages, as they gradually unfolded from about this period that we’re discussing, was such that it was impossible for some Youth Justice Officers to fill out necessary forms like the use of force register and so on, contemporaneously with the actions that required reporting. Would that sort of situation have come to your attention about the difficulty about reading directives, for example, which seems to be a bit of a step removed from that immediate need to fill out forms?---Sorry, Commissioner. The people would often say that it was difficult to keep up with directives and things, and they would complain, “Well, why do we need to do this?” To me it is fairly obvious why they need to do that: it’s part of their job. They – as I said at the beginning, they have a responsibility to learn the parameters of their job, which includes making themselves aware of the directives. I believe that the audits have reported – pointed out over a period of time that staff were not completing reports at the end of their shifts and things like this, but ..... they were not provided with reasons, the audits don’t include the reasons of why people did that.

Thanks. Thank you, Mr Morrissey.

MR MORRISSEY: Just in terms of those audits. That audits that you produced, that you just described that point those matters out, they went – when completed by your unit they went up the chain to the Commissioner; is that correct?---They actually go to the Audit Committee, and the Commissioner is made aware of them, yes.

Was the Commissioner on the Audit Committee?---I’m trying to recall when that was first established, I’m sorry. The Commissioner was made aware of the findings. You will see on the audit reports who they’re addressed to.

Yes?---That’s who they go to, to respond.

Yes. But, in fact, that was the purpose of the audit reports?---Yes.

Was to go to the Commissioner?---It was to keep – it was to advise the department as a whole of any failings.

Yes. Very well. Thank you. I just want to go to some documentation about specific areas. What audit process did you have in place concerning the placing of young persons at-risk? What was the audit process in terms of the at-risk and what documents did you need to look at when you performed that?---Basically, for an at-risk placement, what we audit is against the at-risk procedure.


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Yes?---That has certain requirements in it regarding the actions of staff, the things they are required to do while that child is at-risk, where they are recorded. Basically, the record keeping of the actions that they did while that child was at-risk.

Yes. So can you just – just for the Commissioners, can you identify the name of the document was that you would call for when you were performing that audit?---It was the at-risk file, the detainees’ at risk file is what we would look at to start with.

Very well?---We would also look at the IOMS at-risk file. There are recordings made in IOMS and there are recordings made in a physical file that is attached to that young person.

Yes. So the at-risk file belongs in the young person’s own file?---Correct.

But as a general matter it is also entered in IOMS?---It is.

And it can be accessed by the relevant search?---By the relevant people, yes.

Yes. By the relevant people. And who are those relevant people?---Well, people have access to those. Youth people will have access to it, Professional Standards has access to it, management, they – there are other areas of corrections that don’t have access to IOMS for youth.

Alright. Now, with respect to cell placement, what were the documents that you had regard to, to perform that audit?---It’s a similar – a series of journals and IOMS records. It’s basically similar to the at-risk procedures. There are sets of records that we compare against the requirements for cell placements.

Were those records contained in the detainee’s own file or was this a separate journal?---No, the – those records were recorded in IOMS and a separate journal that may belong to, for example, there – if there is a – an area where someone is being placed in separation, for want of a better term, or de-escalation.

Yes?---Then that area would have a journal that records the actions and interactions of the staff and the detainee, stating the time that the detainee went into there, the reason for why they went into there, the observations conducted on the child and, hopefully, the de-escalation of removing that child from that area.

So there had to be a plan, or there should have been a plan, as to how the child was to be deescalated and moved out of that situation?---I believe there should be yes.

And that’s something that you looked to see when performing the audit?---Yes, the unit did.

Yes. Alright. Now, were you aware in 2012 of the change of nomenclature occurred in respect of the back cells at Don Dale?---No.


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Do you recall – were you aware that a directive came not to refer to those – the back cells at the Don Dale as “cells” anymore but instead to call it the Behavioural Management Unit?---I wasn’t aware of any directive. I did obviously notice that the change had occurred.

Yes?---But I – there was no directive that I’m aware of.

Did you notice any – well, first of all, were you advised that the records would be, or might be, kept differently now that the unit was called the BMU?---No.

Were you told that the cells were now to be used not merely as a sort of occasional emergency placement but as a management tool?---No.

Were you aware in any way that the use of that back area had changed at all?---I was aware that it seemed to be used more often than it had been previously.

Did your audits reveal to you that not only was it being used more often, but that the time periods for which it was being used had expanded greatly?---I can remember from audit findings that the – that it appeared that the youth had been held in there longer than what would normally be.

When they were held in there longer, was it apparent to you that the appropriate records were being kept of why they were in there longer and what – and whether there was a management plan to transition them out?---No.

Your audits were designed for a time when the cell placement was a simple and occasional measure adopted in accordance with the legislation; correct?---Correct.

Your audits were not designed to measure how the cells were used as a management tool for prolonged periods of time?---Correct.

And you weren’t asked to do that?---That’s correct.

Alright. How many times yourself did you physically visit those back cells at Don Dale in the period – and I’ll just give you a period – say 2011 to 2014, were you a frequent visitor? Did you go down there often?---No, not particularly.

Did you go there ever?---Yes, I’ve been there a number of times.

When you went down did you ever notice a smell?---The – I believe that the construction of that area led to there being a smell present virtually since the building was built.

And - - -

COMMISSIONER WHITE: I take it the answer is yes?---Yes.


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MR MORRISSEY: So you could observe the physical conditions in those cells when you went down?---Yes.

And they were not appropriate for prolonged keeping of children or young persons?---No.

Now, in terms of behaviour management plans, did you have any audit system in place to measure what behaviour management plans were in place for a person kept in isolation, and how they were to be put into practice?---Not that I recall.

Very well. Thank you. Now, I’ll just finish this if I may. I understand that there’s a need to adjourn for a couple of minutes. I’ve just been passed a note to that effect. Now, apart from the audits that you performed, you also had the duty of performing investigations as and when requested to do so?---Correct.

Did you have a power to launch an investigation of your own motion?---No.

Did it occur on occasion that matters would come to your knowledge and you would come into possession of information which you thought the Commissioner might choose to pursue as an investigation?---Yes.

In other words, you could become aware of matters, you would draw them to the Commissioner’s attention and say, “This might merit looking at”?---Yes.

Alright. Thank you. And could – for example, I won’t take you to it now, because we’re a bit pressed for time, but was there an occasion in 2015 when you drew to Mr Middlebrook’s attention some management issues down at the Alice Springs centre. You said, “I don’t think you’re getting the full story of what’s happening down there”?---You’d need to - - -

Yes. Perhaps I’ll come back to that after the break, if we’re having a break. I just want to finish this topic and then we’ll having a short break. I see. Yes. Okay. Thank you. But the general standard of your – the general rule was that, when you pursued an investigation, it was at the direction and at the behest of Mr Middlebrook?---It was at the direction and/or behest of Mr Middlebrook, or the CEO, depending what the actual investigation was.

Alright. Thank you. I’m going to take you to three case studies when we resume. Commissioners, I’m advised that there is – there are three vulnerable witnesses coming and I believe there is a – there is a request to interpose three vulnerable witnesses at this point.

COMMISSIONER WHITE: Thank you. Well, we will need to close the court to do that.

MR MORRISSEY: Yes, that’s correct.


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MR O’MAHONEY: Can I – just before we rise Commissioner ask, through you, who is intended to cross-examine Mr Ferguson? Really, for Mr Ferguson’s benefit, but also for our own planning purposes. It might just be easier to indicate who isn’t going to be cross-examining Mr Ferguson.

COMMISSIONER WHITE: Well, we’ve got a list.

MR MORRISSEY: May I just seek some instructions.

COMMISSIONER WHITE: ..... who instruct you can - - -

MR MORRISSEY: Yes, I just wish to find out from those who instruct me what the running order is. And I do apologise, there is a - - -

COMMISSIONER WHITE: I actually didn’t bring – I’m not sure that I brought the list down. I had it yesterday and I left it upstairs. I was going to say the usual suspects Mr O’Mahoney.

MR O’MAHONEY: I hear you, Commissioner, and would expect nothing less. So perhaps that’s the answer for the time being.

COMMISSIONER WHITE: Yes.

MR MORRISSEY: We do have some applications and perhaps we’ll liaise with our learned friends in the break.

COMMISSIONER WHITE: Alright. Because we do have to take a break to reorder the tech and the court, this will be the midmorning break for those who want to take advantage of it. So 15 minutes, Mr Morrissey. Is that - - -

MR MORRISSEY: Yes, more than adequate.

COMMISSIONER WHITE: Now, Mr Ferguson, I know you were following that and perhaps you were alerted to it. We have a number of vulnerable witnesses whom it’s not appropriate for us to keep waiting, for all sorts of reasons that you’ll readily appreciate. So we’re going to stand you down from giving your evidence. I know Mr Morrissey has some more questions he wants to ask you, and then there are a number of lawyers who want to ask you some questions on behalf of their clients, so that will happen as well. We can probably give you a time estimate. Do you think we’ll get back before lunch to Mr Ferguson?

MR MORRISSEY: It’s possible. May I obfuscate and not answer your question at this point.

COMMISSIONER WHITE: Alright. Well, look, if you look for a text message, perhaps you can arrange – Mr O’Mahoney, can you do the communication. I don’t like to keep busy people hanging around unnecessarily.


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MR O’MAHONEY: I’m grateful for you thinking of that, Commissioner. Mr Ferguson was waiting in the wings for most of yesterday so I’ll liaise with him by text and make sure he’s .....

COMMISSIONER WHITE: We can certainly fill in the time.

If you want to go back to your office, we’ll just send a message to you?---Thank you, Commissioner.

It might be before lunch, but it may not be?---Thank you.

<THE WITNESS WITHDREW [10.49 am]

COMMISSIONER WHITE: Alright. Thank you. Can we adjourn then for 15 minutes. Thank you.

ADJOURNED [10.49 am]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

PUBLIC SESSION RESUMED

RESUMED [3.14 pm]

MR McAVOY: Commissioners, there’s one procedural issue. In the last closed session, at the close of that session I tendered the responsive tender bundles from the Northern Territory Government in relation to the witness AS, and the witness BH.

COMMISSIONER WHITE: You did.

MR McAVOY: I just wish to confirm that those tenders were tenders of the redacted material and are intended for – to be made available to the public.


MR McAVOY: So they were open tenders, Commissioner.


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COMMISSIONER WHITE: Thank you. Right.

MR McAVOY: That was all, Commissioner. I understand Mr Dighton is ready with the next set of witnesses ..... panel.

COMMISSIONER WHITE: Thank you. Thanks, Mr McAvoy. Mr Dighton.

MR DIGHTON: Thank you, Commissioners. I call Dr Creati and Professor Kinner.

COMMISSIONER WHITE: Yes. Thank you and there they are. You’ve called and they’re instantly there.

MR DIGHTON: Thank you.

COMMISSIONER WHITE: Yes. Thank you. I take it they’re not separately represented?

MR DIGHTON: They are not.

COMMISSIONER WHITE: Alright. Thank you.

<STUART KINNER, AFFIRMED [3.15 pm]

<MICK CREATI, AFFIRMED [3.16 pm]

COMMISSIONER WHITE: Thank you. Kindly be seated. Mr Dighton.

MR DIGHTON: Professor Kinner, can I get you to state your full name and occupation please.

PROF KINNER: Professor Stuart Kinner, I’m an NHMRC senior research fellow and professor of adolescent young adult health equity at the Melbourne Children’s Research Institute at the Melbourne children’s research institute.

MR DIGHTON: And can you please briefly describe your qualifications and work in the area of health and justice systems.

PROF KINNER: So I think - - -

COMMISSIONER WHITE: I think the amplification is alright. Our technical people will come over and adjust if it’s not, so you might be more comfortable not leaning into it.

.ROYAL COMMISSION 23.3.17 P-1729 KINNER/CREATI ©Commonwealth of Australia

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PROF KINNER: Thank you. So I have a PhD in forensic psychology from 2004. Since that time I’ve been a full-time researcher looking at the health of people cycling through the criminal justice system. Most of my work in the early days was focusing on young adults moving through that system, more recently focusing on young people moving through the youth justice system as well.

MR DIGHTON: And you have provided a signed précis of your evidence to the Commission.

PROF KINNER: Yes.

MR DIGHTON: Commissioners, tender the signed précis, the CV and the annexed articles for Professor Kinner.

COMMISSIONER WHITE: We’ll do that as one exhibit. Is that the intention.

MR DIGHTON: Thank you.

COMMISSIONER WHITE: So those items, the précis, the CV and the annexures for Professor Kinner are exhibit 142.

EXHIBIT #142 PRECIS, CV AND ANNEXURES FOR PROFESSOR KINNER

MR DIGHTON: Dr Creati, can I get you to state your full name and occupation, please.

DR CREATI: Yes. Doctor Mick Creati, paediatrician, adolescent physician.

MR DIGHTON: And can you describe your qualifications and work.

DR CREATI: Paediatrician. I currently work at the centre – Department of Adolescent Medicine, Royal Children’s Hospital, where I’ve been since 2000. I work two days a week at the Victorian Aboriginal Health Service currently.

MR DIGHTON: And you have provided a signed précis of your evidence.

DR CREATI: Yes. With that, I was head of medical services at Parkville Youth Justice for two years.

MR DIGHTON: Sorry, I cut you off. Is there anything you wanted to add to that?

DR CREATI: No, that’s - - -

MR DIGHTON: My apologies. Thank you. I tender the signed précis.


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COMMISSIONER WHITE: Yes. Thank you. Those documents, the précis and the CV are exhibit 143.

EXHIBIT #143 DOCUMENTS, PRECIS AND CV OF DR CREATI

MR DIGHTON: And, Dr Creati, could I just add to your work and ask you how many children and young people you would have, in your estimate, assessed or treated in a youth detention setting?---At least 500 children.

MR DIGHTON: Turning first to the point of admission into a detention centre for a detainee, Professor Kinner, that point of admission is a critically important juncture in establishing and treating the health needs of a detainee?

PROF KINNER: It is. I mean, obviously there are acute needs that need to be identified immediately upon admission, so Dr Creati would be able to expand more on that from a clinical perspective. Obviously, young people who may have been at risk of self-harm, young people who are intoxicated, potentially withdrawing from substances, who may have injuries, various other medical needs. I think it’s important, though, that that shouldn’t preclude a more comprehensive assessment once that person is stabilised and that in itself has two components to it.

One is a comprehensive assessment at an appropriate time early on in that young person’s detention, and the other – and this is consistent with, among other things the Royal Australian College of Physicians guidelines about management of health needs for young people in detention, is ongoing monitoring of health needs for that young person, because not all of the health needs that young people experience in detention are evident on the day they come into detention.

MR DIGHTON: And, Dr Creati, as foreshadowed, what is the clinical assistance that attaches to that assessment period – or assessment point.

DR CREATI: Yes. So I see a two stage process in the initial – firstly, of initial contact or transition into the custodial setting, the emphasis should be on risk and immediate medical needs, and mainly with a view of safety. And I’ve outlined the immediate needs which would include recognition and documentation of any long term medical conditions that may need continuing treatment like asthma, diabetes, epilepsy, any urgent care that may be needed like a dog bite or something which is infected and they need ongoing antibiotics. Is the child on long-term medications which need to be continued? Is there an allergy or anaphylaxis risk for peanuts, or something?

On the ..... so we don’t expose that kid to something which could kill them. Is there any confusion, which may be drug affected, head injury which needs monitoring and assessment, acutely, or transfer to hospital for further investigation? Is there a history of significant drug or alcohol use which would place that young person or


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child at risk of withdrawal which needs to be medically managed and monitored with observations? Is there an infectious condition which may be – need to take into consideration because of risk to other detainees like diarrhoea or scabies, and managed or isolated. Is there a history of mental illness or suspected mental illness?

In which case you’d have an early – assess risk at the time, obviously, but also early referral to a mental health team for understanding and management of that, because it has implications of management of the person in care. Immediate risk of self-harm, what do – how do you relate – talk to youth justice about observations and what mental health assessment do you put in place immediately to further manage the risk? If you’re unable to fully assess the mental state, then the medical team should document that risk. So if you can’t do that needs to be followed up urgently. Is there any trauma needing forensic documentation? I mean kids have been injured by the police or in the arrest? May need to have that documented formally for legal reasons.

Is there a need for emergency contraception, in some young people who have had unprotected sex in the last 72 hours? They’re the immediate risks which need to be managed and assessed at – when they come into detention, within – hopefully within 24 hours. Following up from that - - -

MR DIGHTON: Just stop you there?

DR CREATI: Yes.

MR DIGHTON: Just on that initial point, who can that first assessment be conducted by?

DR CREATI: Where we worked, it was nurse led, so we developed a – pretty much a questionnaire, with a lot of training, obviously, to the nurses. It’s not just a questionnaire, tick the box. A lot of training and then quite clear guidance on when things had to be escalated to the medical team or youth justice. I think, having worked in the Aboriginal Health Service for a few years now, there’s – the role of an Aboriginal health practitioner or nurse is important because that I think a well-trained Aboriginal health practitioner will be able to do most things under supervision, as the nurse will be under supervision by a doctor.

MR DIGHTON: And on that point, you make the interesting observation in your précis, paragraph 8, that from your experience Aboriginal health practitioners or assessors are usually able to get a very different history from an Aboriginal young person from what you could obtain.

DR CREATI: Yes.

MR DIGHTON: And, it may be obvious, but what are the lessons to be drawn in that case?


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DR CREATI: So – I mean, I have worked in the Aboriginal Health Service and I have usually – at least on first contact – an Aboriginal health worker sit in with me for cultural stability. You know, I’m a white fellow in my 50s, there’s a lot of baggage with that, I know I’m not going to get – I’m not the story from a young kid which ..... who’s 22 will get from that young person. So complete – we need to work in teams. I mean, I’m responsible for that medical care, but I need to know context, and where that kid lives, and where he’s going home to, to actually successfully transition that kid back to community, and as well to provide appropriate care.

I mean, Tin Dara who’s the Aboriginal health worker gets a very different story from me in terms of risk. The kids are quite often shut down but open in talking with Tin Dara. So it’s – I think it’s an important lesson that I’ve learnt as a non-Aboriginal person working in a community controlled setting with Aboriginal people.

MR DIGHTON: And on that issue of limitations at that first admission point, you also note at paragraph 6 of your précis that youth detention is the only environment in which you’ve worked where children as young as 12 are being assessed without input from parents or family.

DR CREATI: Yes.

MR DIGHTON: Firstly, how important is an understanding of the history and background a child – of a child from family sources?

DR CREATI: If I can – so I can give an analogy from working in the hospital. You know, if a family brought their child to the Royal Children’s Hospital in Melbourne and the hospital said, “No, parents, you have to wait outside, we’re not including you in the assessment,” I don’t – that doesn’t even meet minimum standards, I think. So we’re in the position, obviously, where parents cannot come in to the custodial assessment. So – and I think – so we have to set the bar in terms of risk at a lot lower and make sure they’re safe.

COMMISSIONER WHITE: But – well, you wouldn’t, for example, expect the child to know what immunisations they’ve had, for example.

DR CREATI: Absolutely.

COMMISSIONER WHITE: Because they happen before the child has a memory, even.

DR CREATI: Yeah, absolutely. And, you know, a lot – we know that 20 per cent of the kids in Parkville had intellectual disabilities ..... age. The assessment has to be developmentally appropriate, and families or community or – and the concept of family varies different with Aboriginal families, I’ve learnt – need to be part of any assessment of any child who – otherwise I don’t believe you’re getting a full assessment. You’re not getting a full assessment.


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COMMISSIONER WHITE: I know that, of course, you’re asking these questions at a pretty high theoretical level but on the ground, you mentioned Parkville then, Dr Creati.

DR CREATI: Yes.

COMMISSIONER WHITE: Is that where you’ve been conducting your assessments?

DR CREATI: I was employed at Parkville for – yeah, for two years, from – until three years ago.

COMMISSIONER WHITE: Alright. Was this kind of relatively comprehensive initial assessment in place for some time there?

DR CREATI: While I was there for two years, yes.

COMMISSIONER WHITE: Was it there prior to that time as far as you know.

DR CREATI: The assessment was there, it wasn’t as – yeah, it was there, but – sorry, I sort of standardised the flow chart, I suppose. So the nurses were doing the equivalent assessments but I made the reporting lines clearer.

COMMISSIONER WHITE: You prepared something in a sense.

DR CREATI: Yes.

COMMISSIONER WHITE: You trained them to do this.

DR CREATI: Yes – yes – yes, Commissioner.

COMMISSIONER WHITE: Sorry to .....

MR DIGHTON: Not at all.

DR CREATI: Adding that, I think – you know, I mean, obviously the base level, you’re not going to know about immunisation, but you know – past history of – you know, if you’re doing a mental health assessment of any person young, past history of attachment trauma, postnatal depression, all of that which affects a kids mental health is highly relevant in assessing risk and mental health, and I think to have a mental health formulation and possibly behavioural management plan based on information that doesn’t contain the parents’ perspective and observations, I think, is not a complete assessment.

COMMISSIONER WHITE: Then because it’s likely, just from our general experience from what we’ve heard so far, that many of those young people coming


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into the detention centres will either be on or have been on a child protection order of some kind.

DR CREATI: Yes.

COMMISSIONER WHITE: Then the capacity to tap into the files and records about that young person will provide you with a lot of the information that the parents might have in some different setting?

DR CREATI: It can, but a lot of the – for example, cognitive reports will be held by a school and the parent, but not necessarily on the child protection system.

COMMISSIONER WHITE: Well, then of course, it requires crossover, doesn’t it?

DR CREATI: Yeah. And, you know, electronic – yeah, electronic data management, whatever you want to call it, electronic medical records is vital and I think it’s an investment which should be heavily considered.

COMMISSIONER WHITE: Thank you. I ran away with your - - -

MR DIGHTON: Not at all, thank you, Commissioner.

COMMISSIONER WHITE: I’m sorry.

MR DIGHTON: Thank you. Not at all. Professor Kinner on that mental health aspect, the research indicates that the prevalence of mental disorders in young people in detention is markedly elevated in contrast to the general population. Can you expand on that research a bit?

PROF KINNER: So there’s actually comparatively little research in Australia. We have some quite good data from New South Wales from the young people in detention health survey from 2009. I’m not aware of any comparable data in any other Australian jurisdiction that are in the public domain. What we do have though is evidence internationally from other countries. A lot of it from North America and from the UK. There is a systematic review of that evidence in 2008 and it shows that the prevalence of mental disorder is much higher, so there’s lots of kids in detention with mental health problems, particularly young girls, and it varies enormously from one setting to another for a variety of reasons we don’t fully understand yet.

MR DIGHTON: Sorry. Just to clarify, on setting, you mean what sort of setting?

PROF KINNER: As in it varies a lot from one setting to another, and whether that’s a different detention centre, a different country, different ways of doing the research, it’s not yet clear. But what is clear is wherever you look kids in detention are much more likely to have mental health problems.

DR CREATI: And - - -


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MR DIGHTON: Dr Creati.

DR CREATI: - - - if I can add that the Royal Australian College of Practitioners policy for the care of adolescents in custody, I think it’s called, from about three or four years ago puts out a figure of 75 per cent of young people in custody have a diagnosable mental health condition, whether that’s ADHD, conduct disorder, depression, anxiety, so it’s probably the biggest health issue for young people in custody.

MR DIGHTON: Thank you. Professor Kinner, continuing with that research there’s research being conducted in the adult prison context that suggests there’s significant underreporting of histories, particularly of self-harm, for prisoners. That’s the case?

PROF KINNER: Yes.

MR DIGHTON: And it’s fairly obvious that a history of self-harm is a key indicating of the future risk of it occurring? Just for the transcript – I know you’re nodding, but if you can say yes.

PROF KINNER: Yes.

MR DIGHTON: Thanks. And is there anything particular reason that the research with would not apply, in broad terms in the youth detention context?

PROF KINNER: I think the research would apply in broad terms in the youth justice context. So what we’ve found very recently in the adult setting is even in a setting where we’re getting candid disclosure from people undertaking – participating in research in prison, there’s quite significant under disclosure of self-harm histories. We know that because we’ve gone back and looked at their medical records for ambulance attendances, presentations to emergency departments and hospitalisations for medically verified self-harm which is the pointy end, the more serious self-harm. So we know they markedly underreport that history.

We know that people who have that history and don’t report it are considerably at increased risk of self-harm after they get out, we’ve shown that with some recent research as well, and there’s a lot of good evidence already out there that people with a history of previous self-harm are also at increased risk of suicide. So, obviously, history of self-harm is a marker for risk in the longer term. And I think the important point is we’re not just talking about acute episodes of self-harm risk in detention. We’re talking about the long-term wellbeing of young people once they return to the community and there’s some very compelling research showing, for example, that young people released from detention are at markedly increased risk of suicide, and obviously we – you know, we would suspect that those young people are also young people who were considered to be at risk of self-harm. So it’s important to note.


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MR DIGHTON: Yes. Dr Creati, where a young person presents upon reception with those issues, mental health issues or a risk of self-harm, what are the procedures and measures that should be in place?

DR CREATI: I’ll go back a step and the classification at risk of self-harm is completely dependent on being able to assess the kids at risk, so it gets back to the point of past documentation and whether that’s accessible to the person doing that assessment at the time. The College of Physicians paediatric chapter would also emphasise that the assessment is developmentally appropriate, and we know a lot of these kids have language delays, and culturally appropriate, and we touched on that first because kids may not disclose to someone my age they’ve self-harmed, so it goes back to the point of the appropriateness of the assessment, because it’s vital, because we know it’s high.

The management of that two – depends, there’s a youth justice response to that, and a health response to that. In our setting the youth justice response was – they’re not nurses, they’re not doctors, but observation. So there might – if the kid was at high enough risk, we put the kid on continuous observation which just means looking through the door – not in an isolated room, in a normal room – so they can be eyeballed continuously, so it doesn’t have to be segregated, but can be observed, to mitigate that risk. And I think – so there needs to be that communication and trust between the health service and youth justice because there’s resource implications from that.

And that was one of the biggest – to be fair to youth justice, it went very well, but there was a big – it needed a lot of team work to get between us and youth justice to say, “Well, this kid is at risk, this is your role, your role is observation.” And I get there’s staffing constraints and on things like that, and resource constraints, but that bit of the management of risk is vital, that collaboration between the health team and trust of health team that we have identified youth risk and what youth justice’s role in that response is. Now, risk is at the tip of the iceberg, I think. You can maybe identify it. What you don’t see is what’s driving that risk or acting out, what’s under the water, so what the kid’s thinking.

So that needs teasing out by a trained development – trained mental health professional who works with kids. And may – gets – the kids may not give you the whole story, and developmentally appropriate, and is culturally appropriate as I said. So – and then, you know, any kid that was on increased obs, was a daily review by the health team, except over the weekend, but – and obs were adjusted. So that was that interplay and communication between the health team and youth justice, because the management of the risk would then depend on what was causing it and then the forensic mental health team would say, “Is it depression, is it anxiety, is it adjustment?”

Is the kid – so it’s really looking at what’s under that tip of the iceberg and getting a better understanding. So a proper thorough assessment, doesn’t need to be a psychiatrist necessarily, but by a trained mental health clinician, nurse forensic – so


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mental health nurse, mental health psychologist, and then the ongoing management needs continuity. I mean, you can’t have one person assess the risk on Monday, a different person going back on Tuesday and going through the whole story again because kids shut down, so it’s how these assessments are resourced. The kids get sick of telling the same story to a different person every day. And they make ..... I reckon they will minimise and make it up.

So the continuity of assessment is important. So there’s lots of factors, it’s not – and the resourcing implications. And I think the clinical side’s easier. It’s how the – a lot about organisation development, service development, and service integration of the health service within someone else’s precinct.

COMMISSIONER WHITE: Dr Creati, you might need to slow down a bit, because our transcriber has to take down every word that you’re saying.

DR CREATI: Sorry. Okay. I’ll slow down. So I’ll stop.

COMMISSIONER WHITE: Just – you should have a look at the transcript. It’s a solid block.

DR CREATI: Sorry. Apologies.

MR DIGHTON: To pick up two points from there then, can we say firstly that the coordination and lines of communication between the staff who are at the coalface with the detainees, the Youth Justice Officers, and the mental health providers is critical?

DR CREATI: Yes.

MR DIGHTON: And there needs to be someone coordinating it and providing continuities between the two – is also critical?

DR CREATI: Yes – yes.

MR DIGHTON: Okay. Thank you. Professor Kinner, one of the conclusions from the research that you refer to in your précis, this is at paragraph 10, is that more than half of young people in detention have complex health related needs. Could you just expand on that research?

PROF KINNER: Sure. So, again, most of the evidence comes from other countries. We have a striking lack of research literature around health and justice involving young people in Australia. What we do know from the New South Wales work, and from work overseas, is that most kids who come into these settings have multiple needs – health related needs that require multiple providers. So mental health needs is obviously one. The majority of young kids have a history of risky substance abuse. Nearly all smoke tobacco, which is something we forget about, given it’s a


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leading cause of mortality. There’s very elevated rates of chronic conditions, oral health, asthma, learning difficulties, intellectual disability.

We don’t really know how common some of these problems are in youth justice, but all of the evidence suggests that they’re elevated. The point is that this complexity is normative. Most kids have multiple problems requiring multiple sources of care. Dr Creati has pointed out that that coordination of that care is a challenge already in the detention setting. The challenge is exponentially greater for these young people once they’re returned to the community. That’s where things start to unfold, that’s where we see the bulk of the morbidity. And so there’s two parts to the systems we’re talking about here. One is about coordination of care from multiple service providers at a given point in time.

The other is trying to achieve continuity in that care over time as young people cycle in and out of detention, which means cycling in and out of two totally different health systems that don’t talk very well to one another.

MR DIGHTON: Thank you. And we’ll come back round to a couple of things that you’ve raised there in a bit. Moving to the period of while they will actually be incarcerated and some of those conditions, Dr Creati, the Commissioner has encountered evidence from a number of sources relating to the conditions for children in Youth Detention Centres over the years.

DR CREATI: Yes.

MR DIGHTON: And I’d like to provide – to – for you to consider some aspects of some scenarios that I’ll put to you in terms of best practice for provision of medical care. Firstly, there’s the situation that arises when a child is placed in an at-risk classification. And by that I mean when they are at risk of harming themselves or someone else.

DR CREATI: Yeah.

MR DIGHTON: And the response may have been that they will be placed in an isolation cell with very little to do in there, they would be in that cell for up to and around 23 hours a day.

DR CREATI: Yeah.

MR DIGHTON: For up to three days. There would be limited contact with family and they might not be seen by a psychologist or counsellor for up to 24 or 48 hours after being placed in that cell. In terms of best practice, how does that approach fit with the medical care and environment that a child at risk should be receiving?

DR CREATI: I think an important concept is equivalence of care, that the kids in custody have the right to the same level of health care as anyone else in the community, and probably the best parallel in this situation may be a mental health


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ward, and it’s pretty unusual to lock anyone in a mental health ward in isolation, and it’s – certainly they have lots of review. So I’ll be – there’s lots to unpack there. What is at-risk? Is it acting out and at risk to the guards or at risk of self-harm?

MR DIGHTON: Both.

DR CREATI: And they’re different. They need to be understood differently, because acting out is very common in adolescent boys anyway, you throw in the possible learning or language difficulties and – you know, age of 12, maybe developmentally eight. You think it’s a tantrum in an eight-year-old, but if the kid looks 14 but developmentally eight, it seems to be threatening, but it’s not: he’s handled it as a 14 year old, not an eight year old. So the youth justice, I’ll go back a step. Again, that decision needs to be, how youth justice, I presume, are identifying at risk, and that’s their decision to isolate and whether he’s continuing risk is another issue. And is that youth justice or the mental health team’s decision?

But you know, I would suggest that we know a lot of these kids are traumatised, we know they have developmental disabilities, and there’s a massive opportunity to deescalate any situation before it heightens into acting out behaviour which may put anyone at risk. I know – well, in the hospital we have a code grey, code grey which is an unarmed threat, and lots of training and culture around that, and the first thing is de-escalation and most situations are deescalated by – and whether that’s the nurse, psychologist or whatever, but they can be deescalated. I would prefer that – and we often get family in or community to help calm that kid. If we’ve got a kid who’s stressed in a hospital, who’s going to be the most likely person to understand? That kid’s family or if – or someone they trust.

So rather than isolate them from the family, which will make it worse, let’s try and get family in, or someone the kid trusts – might be a worker, a youth worker on the floor, key Aboriginal worker in the team, you know, someone who knows the kid. Deescalate it, rather than lock them up and isolate them. So – and then – if they are – if it’s depression, risk of self-harm that’s a different issue. I’m worried that it’s 23 hours per day. That gives to me a sense it’s continued day after day after day, and I’m just wondering what assessment to understand the drivers of that behaviour are happening before – in between times.

MR DIGHTON: And on that, if I can stop you there on that point. Is it the case that the act of putting them in the isolation cell can, in fact, in many cases aggravate or compound the .....

DR CREATI: Absolutely. I mean, a kid may not understand why he’s in there, may not see an end point to while he’s in there. I mean, “Why am I in here? I don’t know. How long is this going to go on? What – I can’t talk to anyone. I’ll smash the wall.” Yes, absolutely.

MR DIGHTON: And if I can just identify – you spoke about the code grey and the fact that there’s training and culture around that de-escalation.


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MR DIGHTON: Can you just provide some more detail on where that comes from, or the sources .....

DR CREATI: It’s driven from mental health, because – I mean, that is probably the equivalent. They have a lot of clients who act out, angry, being in – may be in involuntary lockup. So if I note – look, for the hospital we have a code grey policy, nurses are trained in de-escalation, we have a code grey coordinator, if there’s a code grey, the code grey team comes and we would talk – try and talk the kid down. If not, because there may need to be restraint or medication or compromise, yes. So – I mean, there’s a balance of staff safety, child safety, but I think there’s also a culture, I think, around how we handle, and understanding that these kids may look 16, but developmentally be 12.

And how you – so the youth justice staff are first on the floor, major role with de-escalation. They need mental health first aid training, training in de-escalation. And that needs to be refreshed. In my experience there’s a big turnover in staff on the floor, and so that needs to be ongoing part of best practice care. Otherwise, we’ll get situations where kids act out, we understand. The at risk for self-harm is a different condition, so again it’s the tip of the iceberg. We might see an act of self-harm but, you know, we don’t see what’s driving that, is it isolation, adjustment, is it missing the family? Would a phone call fix it, you know? So that needs a psychologist or a mental health clinician’s input.

I got a little bit worried when I looked at the at-risk procedures where it was mainly the medical officer’s role, which – what – I wouldn’t have done that in Parkville. That’s a mental health clinician’s role. They’re much more skilled at that than I would have been, and - - -

MR DIGHTON: I’ll just – I’ll take you to that point now, because – as part of a second scenario, and that is this: that the law requires that before a child can be taken off the at-risk classification there must be a recommendation to that effect from a medical practitioner.

DR CREATI: Yes.

MR DIGHTON: If a child is at risk in a detention centre on a Saturday, in order for them to see that practitioner and be assessed they must be taken from their cell, they are placed in an ambulance, transported to the emergency department at the hospital, wait to see the psychiatric registrar and be assessed.

DR CREATI: Yes.

MR DIGHTON: And then they return to the detention centre. If the recommendation by the psychiatric registrar is that they should not come off-risk then the whole process is repeated the following day. Again, in terms of best


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practice and dealing with a child who is by definition at risk of self-harm or harm to others, what is your view on that process?

DR CREATI: So very different to where we work. We have a group of three or four psychiatrists on an on-call roster and they would come in to assess the kid on-site.

COMMISSIONER WHITE: And is that a seven day a week.

DR CREATI: Yeah – yeah, on call, yes. So the way it worked was that the children’s hospital had the contract to provide the health care at that time, and part of the contract was having on-call psychiatry. Now, it could be a psychologist, but there’s certainly an on-call mental health practitioner to come in. I mean, the – there’s a few things. I mean, I – transporting kids out is a – I get youth justice have restraints around that, and need permission, and there’s logistic requirements, and they may have to lock down a ward because they haven’t got a unit, because they haven’t got staff. So it may – it may potentially be a barrier. It doesn’t need a, “We’ve got to invest in it, we won’t put him at ..... “ So there’s often barriers to getting kids out, because of restraint.

The kid will get heightened and, again – you know, I don’t know if they handcuff or not, but again that’s going to heighten – some kids are transported with handcuffs, in my experience, so that’s going to heighten. And the chance of the kid engaging with a psychiatric registrar, getting ..... risk in that situation is low. I mean, he may not have seen the person before. Yeah, I’m not – better practice to have staff come in and consistent. And again, you know, those staff will have had a relationship with youth justice and all those other things I talked about, the importance of relationship between medical staff, health staff and youth justice won’t be there if you get a registrar who may be in Alice Springs for three months or six months rotation.

You know, that’s not best practice. Tut I get there’s resourcing implications and that’s, you know, that’s hopefully part of the Commission is looking at the resources that need to get the service up to best practice in the kids’ interest, but I get there’s resourcing implications. I also wonder about – you know, who’s supervising the registrar, because they have to be supervised by a psychiatrist, and it’s a pretty senior decision to keep a kid in custody. You know, the registrar, there’s a lot of – lot to go on a trainee psychiatrist. I would prefer that at least he consults with the registrar. So I don’t know if that will be the process, whether there is secondly consultation, and who’s ultimately responsible for that decision.

MR DIGHTON: Thank you. Professor Kinner, following from the practical aspects of the health care and detection, I’d like to turn to how this fits into a human rights framework, and if I can have brought up on the screen the Mandela Rules, this is the United Nations standard minimum rules for the treatment of prisoners, otherwise known as the Mandela Rules. You’re aware of this instrument?

PROF KINNER: Yes.


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MR DIGHTON: If I can take you to rule 22.1, part of that is the prisoners should enjoy the same standards of health care that are available in the community. And this was foreshadowed by Dr Creati in terms of equivalency. Can you speak to the significance of that principle in this context?

PROF KINNER: Sure. So it’s sometimes or often described as the principle of equivalence. And it’s premised on the idea that young people are held in detention and adults are held in prison as punishment but not for punishment. In other words, the punishment is deprivation of liberty not degradation of healthcare in any way. And so my understanding of that – I’m not a human rights lawyer, but my understanding of that is that we have an obligation to provide care equivalent to that in the community, and equivalence doesn’t mean the same, because there’s a unique setting, and because the health issues for young people in detention are much more complex typically than the health issues for young people in the community. So equivalence means achieving the same outcomes, not having the same inputs.

MR DIGHTON: And we’ve touched on this already, but rule 24.2 provides that healthcare services should be organised in a way that ensures continuity of treatment and care. I realise we touched on it already, but there are added elements as to why that’s important in this context?

PROF KINNER: Sure. So there are two things I’d like to say about that. The first is that for most young people their time in detention is a brief blip in their lives. We’re looking at young people who typically come from very disadvantaged backgrounds, experiences of trauma are common, complex health and social problems are common, there’s a brief blip of time in detention before they return to the community, that’s an unfortunate opportunity, but often one of the few opportunities we have to identify some of their unmet or underserved health needs and initiate care. That’s the most we can achieve in detention in terms of improving the health and wellbeing of that young person.

We can only achieve anything in that regard if that care is sustained once the young person returns to the community. So through care is critical, and so the evidence that we have – and again most of that evidence has come from the adult setting, but again it seemed appropriate to apply it to this setting. The evidence would strongly suggest that we achieve the best results in terms of engagement with care, retention in care, and better health outcomes, when that care is provided to the extent possible through an in-reach model. And what that means is, instead of having a separate, unique health service for young people in detention, accessing services that are available in the community, certainly before young people return to the community, that’s important because those young people develop rapport with the providers in the community.

That’s important because it increases the chance of them engaging with that provider in the community, and it also increases the chances of what we know about their health needs following and from detention back into the community, so we don’t start all over again once they get out.


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MR DIGHTON: You mentioned the word through care, which was where we were going to go next, and just for the current purposes we can define that as the coordination of service delivery and support to detainees or children during and after detention. Is that a fair definition?

PROF KINNER: Yes.

MR DIGHTON: And you note in your précis at paragraph 28 that, firstly, we know very little about the outcomes for children released from detention, but what we do know is that they’re disproportionate number die from preventable causes such as drug overdose and suicide. Can you just expand on that?

PROF KINNER: So that’s correct. Unfortunately, there’s – there haven’t been many studies, one large study in the US found a very markedly elevated risk of death in young people who had been through juvenile detention. In that setting, over half of the deaths were gun deaths. Now, that’s obviously not going to be replicated in Australia. One study in Australia in Victoria, by Carolyn Coffey, found that drug overdose was a leading cause of death and that, if I recall correctly, in a very small number of young men in detention in Victoria during the years of that study, the heroin overdose deaths in those young men who had been through detention accounted for a quarter of all heroin overdose deaths in the State during the years of the study. So if we’re trying to prevent tragic deaths in young people, preventing those deaths in young people who cycle through detention is a critical part of that.

MR DIGHTON: Dr Creati, if I can turn to you on this point. The – was it your experience in terms of frequency and prevalence of children presenting and having throughout their incarceration issues with drug and alcohol?

DR CREATI: Can I just comment on the through care first.

MR DIGHTON: Sorry. We’ll come back to through care in a moment.

DR CREATI: I can’t give you statistics.

MR DIGHTON: That’s fine .....

DR CREATI: High. And obviously cigarette cannabis, sorry, tobacco and cannabis, in Victoria at the time I would have had anywhere between two and maybe four or five young people on opiate replacement therapy for opiate use in the community. A lot of ice, kids coming down off ice which needed medical management and sedation in the remand setting.

MR DIGHTON: And in your précis you note or agree with – that the concept of through care is critically important?

DR CREATI: Yes.


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MR DIGHTON: How in your view should that be designed how should it work practically?

DR CREATI: Yes. So let me get back to that concept of equivalence of care, and look at a hospital setting as an equivalent. And most kids who come in – have a chronic illness, would spend a small amount of time in hospital, and most of their management is in the community; most kids with a mental health issue would spend a small amount in hospital, and most of their time in the community. So the standard practice at the – we talked about information coming in, but information going out – you know, at the end of each admission to the hospital it’s mandatory to have a discharge summary which outlines the kid’s ongoing needs and who’s going to – and that goes to the family.

Well, even before the discharge summary, you sit down with the family and say, “This is what’s happening in hospital, this is the continued care that needs to happen.” So – families or child protection, because kids aren’t going to take themselves to drug and alcohol services. Or – so we need to find a responsible person in the community who will ensure that their care is continued. And then that information needs to – the carer needs to be identified, the service, carer, mental health service, drug and alcohol service, medical practitioner needs to be identified. You put that in the discharge summary, give a copy to the family, would be – and – or coordinating body such as child protection.

That’s a lot easier for the sentence – kids on sentences. In my experience, kids on remand, because they come in and a lot – quickly, and you don’t actually often know if they’re going to come back from court or not. It’s a lot harder, but it - - -

COMMISSIONER WHITE: Could I just raise something.

DR CREATI: Yes.

COMMISSIONER WHITE: Perhaps either or both of you might want to respond to this. There are a number of jurisdictions overseas, and I’m thinking particularly in Sweden and New Zealand where a young person who presents to court, in a youth court setting, presents with drug, alcohol or some other dependent drug, and they are in effect sentenced to a compulsory residential drug and alcohol facility for therapeutic intervention to address those addictions, on the basis that most of their criminal offending is actually prompted by the need to satisfy the acquisition of money or those drugs – for those drugs. Do you have a view, from a mental health perspective, of the practicality or otherwise of a compulsory placement of that kind? I might say the research seems very positive about the outcomes once they settle down into these facilities. Perhaps I’ll ask you first, Professor Kinner.

PROF KINNER: Sure. Again, I’ll draw a parallel with the adult system. You may be aware of work by Deloitte, that was commissioned by the Australian National Council on Drugs comparing incarceration versus residential rehabilitation for Aboriginal Torres Strait Islander people who’ve committed offences related to


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substance use, and their modelling work suggests that while it seems expensive, the in-patient detox and rehabilitation is cheaper, it’s more effective in reducing offending and it achieves better health outcomes for those people. So there aren’t enough studies of that sort, but again the evidence that we have that I’m aware of suggests that it ticks all the boxes. You save money, you get community safety, and you get better outcomes for the people moving through those settings.

COMMISSIONER WHITE: And presumably there may be some resistance by the people who are going to be the subject of these orders initially, but the options are probably less attractive for them, aren’t they?

PROF KINNER: Perhaps the lesser of two evils.

DR CREATI: There’s two types of residential settings one for detoxification which might be a week or 10 days.

COMMISSIONER WHITE: Yes.

DR CREATI: To go through the medically managed withdrawal, and link them into services and mental health, but rehab type programs are often three months – up to, and you need to be – they need to be voluntarily, so - - -

COMMISSIONER WHITE: You think you couldn’t be the subject of a compulsory, residential – the alternative, of course - - -

DR CREATI: Might be a choice of prison or that.

COMMISSIONER WHITE: Yes. Well, it’s either that or go into detention.

DR CREATI: Voluntary, as much as that is voluntary, yes. I think it needs to be linked in with mental health support, obviously. We need – we have trouble in Victoria, there’s no residential service for kids under 16, and gender mix is difficult because often the boys outnumber the girls by quite a few and get – placement for young girls is difficult, but yeah – but – yeah.

PROF KINNER: And could I add as well that while those residential treatment setting may be a good idea, they’re not a replacement for through care. I mentioned before the researching around mortality after release from recent prison detention. There’s a very similar phenomenon with an increased risk of death for people released from psychiatric hospitals and inpatient drugs facilities, so whenever we have somebody in a closed setting we have a really strong imperative to provide continuity of care for those people once they’re returned to the community.

COMMISSIONER WHITE: Yes. Certainly, from my brief researches into this field, the better ones anyway, seem to be on that path, yes.

PROF KINNER: Sure.


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MR DIGHTON: Thank you, Commissioner. Descending from the abstract into what may be a fairly simplistic practical level but, if there is going to be a through care model, does it involve a coordinator going in – from the external agency going into the detention centre, or is it controlled and organised from within the detention centre reaching out to other agencies?

DR CREATI: That depends. I think in the hospital setting we have the family come in, so I think getting whoever’s care – there’s two levels of care I suppose, we talk about, who’s – where does that kid live? I think the determinants of social, emotional wellbeing, more than mental health. If I divide the week up into 168 hours, you might see a service one hour a week, what’s more important for social and emotional being is time at school or work, time with friends, so you need that skeleton around the kid to know where they they’re going and caring for the kid and then put the services into that. So we need to know who’s going to provide the skeleton and child protection or family.

Then if the specific services, like mental health, drug and alcohol, one hour a week, they could come – I think they should come in, if they can, to make that bridge with the child. Now, what’s central is central case coordination, if that’s what you want to call it, once – so if the kid doesn’t turn up, or who’s managing the referrals and the appointments? And I think, so it’s again family, and in conjunction with youth justice, child protection and services. So – yep.

PROF KINNER: I’ll just add to that. I mean, there’s actually very good evidence from randomised control trials, which is kind of the gold standard way of assessing these things, that an in reach model where you have a care coordinator in the community engaging with someone prior to their return to the community is an effective way to go. It makes sense on the face of things, and there’s compelling evidence it’s a good idea. Unfortunately, in both prisons and youth detention settings in Australia there are some avoidable structural issue that make that very hard. So people in prison and detention are excluded from Medicare which means, for example, that community controlled health services can’t provide services in detention and bulk bill for that.

COMMISSIONER WHITE: But that’s a simple stroke of the pen to change that.

PROF KINNER: It’s a simple stroke of the pen. It’s the Health Minister granting an exemption under section 19(2).

COMMISSIONER WHITE: Correct. And perhaps we could make that a recommendation.

PROF KINNER: I think it’s - - -

DR CREATI: It would be easy.

PROF KINNER: - - - it would be echoing recommendations for a decade, yes.


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DR CREATI: ..... yes.

PROF KINNER: Yes. And the PBS, and more recently also for young people with disability, an explicit exclusion from the NDIS which also precludes engagement with young people who have a stability who might have care coordination needs after they return to the community, and those exclusions seem to belie purported commitment to equivalence of care.

MR DIGHTON: Commissioners, those were my questions.

COMMISSIONER WHITE: There are a number of people who want to ask questions of our experts, aren’t there?

MR DIGHTON: There are, Commissioner. Perhaps if I can invite Mr Boulten first.

MR BOULTEN: Professor Kinner and Dr Creati, my name is Boulten. I represent the North Australian Aboriginal Justice Agency in this Commission. Just in relation to through care, while we’re on the topic, through care obviously works if there’s follow-up after release, but also if there’s some coordination before release; correct?

PROF KINNER: Yes.

MR BOULTEN: So that ideally there would be some degree of continuity between those who are coordinating services in custody and then at least for the period of some months, maybe six months after custody, would you accept that?

PROF KINNER: The – through care by definition means having continuity of care over time as someone cycles in and out of a place of detention.

MR BOULTEN: That would involve, for instance, linking the detainee up with services in advance of release?

PROF KINNER: Yes.

MR BOULTEN: And then making sure they actually get there and get followed up if they don’t go there, for instance.

PROF KINNER: There’s through care light and there’s through care heavy investment. It’s a continuum. The – if you look at the models that exist around Australia at the moment, through care light is where you have a brief assessment with someone and make appointments before their release and then they’re on their own when they walk out, and that’s the watered down version of through care. At the other end of the spectrum there are many prosecutes in Australia and elsewhere that actually have people meeting the person at the gate, driving them to appointments, and probably everything in between.


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MR BOULTEN: When there are issues of remoteness, where people live in very remote communities then, of course, extensive contact requires extensive dollars support; correct?

PROF KINNER: That seems to make sense. There’s a remarkable lack of evidence, so I’m talking from what appears to make sense. There’s not been much research at all on how we improve outcomes for people released from prison or detention returning to remote communities. We really don’t know.

DR CREATI: But at least those kids we have – you know, should get the equivalence of care as any other kid in that community would with the same mental health condition? And that’s an investment in remoteness, as you’re implying. That could be one of the recommendations. At least, I imagine it would cost, but why not do it?

MR BOULTEN: That would emphasise some degree of continuity between the carer and the child; correct?

PROF KINNER: Yes.


MR BOULTEN: And adequate numbers of through care workers so that the ratio of contact is relatively feasible.

DR CREATI: If you’re assuming they’re not with family – is that your assumption you’re making there?

MR BOULTEN: Yes.

DR CREATI: If they’re not with family then, yes, its – whether you call them workers or – identifying who’s responsible and transfer of responsibility, it’s – I mean, these are children.

MR BOULTEN: Just in relation to family and kinship contact, how important is it for the health of kids in detention that they be able to have regular contact, physical contact with people they’re close to?

DR CREATI: I think that’s important. I don’t know how, but it’s important. If we look at successful reintegration into community, then you want to be keeping them in contact with the people they’re going to be reintegrated with, and presumably family. So I mean, your best model is – I mean, even adult prisoners are looking at conjugal rights in some settings, look at the importance of men to be linked with community on release. So if we’re looking at a rehabilitative model where kids go back to community, I think if you break that contact and their identity becomes an incarcerated person, then it’s difficult.


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MR BOULTEN: How important is it to fill up the day for kids in detention?

DR CREATI: Yeah. I think there is an ombudsman report in Victoria, maybe 2011, and after that there was an increase in programs during the day, yes. You know, like, again, equivalence, what’s a kid that age doing? School, friends, activities, part-time job. You want to normalise, to the developmentally appropriate model, what a kid in the community would be doing, (1) for the mental, social, and emotional wellbeing and (2) to make that transition back to the community easier, if they’ve got massive gaps in education or whatever, they could drop out of school more likely, so yes, vital.

MR BOULTEN: Going to issues that relate to juveniles who are assessed as being at-risk and at the moment the model seems to be one-size-fits-all solution to that, you’re put into an at-risk cell.

DR CREATI: Yes.

MR BOULTEN: We’ve heard it described, it’s very unsatisfactory health condition, just not clean, isolated, no interaction, no activity, nothing to read, under observation 24 hours. Is there a graded options system available? And, if so, how do you actually work out whether a kid can be given something less secure than that?

DR CREATI: Again that tip of the iceberg, one-size-fits-all. You see the iceberg, you don’t know what’s driving – you don’t know what’s under the water. So you’ve got to understand what’s under the water, what’s - - -

MR BOULTEN: Or what’s inside the kid?

DR CREATI: Yeah. That’s the – that’s the analogy, sorry. But it’s assessment and look at options. I mean, it can’t be one size fits all. I mean, we don’t – if you’re doing this in a context possibly not understanding the driving behaviours, driving thoughts, what’s inside the kid, as you say - - -

MR BOULTEN: Professor Kinner wants to say something.

DR CREATI: Sorry.

PROF KINNER: Just add ..... going back to this principle of equivalence again, that it’s very useful to draw parallel in-patient mental health settings, and what we do if someone starts to act out in that kind of setting. We have annual national reporting on events of seclusion, every time someone is physically secluded in those settings around the country now, as an indication of the fact that we’re investing and trying to minimise those events. We have really good evidence about ways to minimise escalation of events to the point where that seclusion is necessary and we have good evidence about ways, as Dr Creati has spoken about, to deescalate those situations should they occur, again with the intent of minimising the use of seclusion as a response.


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MR BOULTEN: What other steps in between normal activity and seclusion are there?

DR CREATI: I think you need an individual behavioural plan, basically. So you assess the kid, get the behavioural plan, so that’s what we do with kids at risk of acting out on the ward. Because he’s in child protection, he doesn’t like authority, he doesn’t understand, language problems: individual behavioural plan may be keep the instructions simple. If he says no, repeat them again, don’t get angry, involve him in group activities to take his mind off things. But it needs to be individualised. So I suggest – I suggest any kid who’s deemed at risk should have an individual behavioural plan as a possibility and that then you can sort of say what are the graduations in step and what will work for that kid.

MR BOULTEN: So who draws up such a plan?

DR CREATI: I think, again teamwork, youth justice in conjunction with the mental health team. I mean, this is where you need to work together, because there’s constraints – I get that – there’s constraints in youth justice on resources and programming and time and lockdown and shift changeover, and that needs – so it needs to work together.

MR BOULTEN: Is there something different – the individual management plan - - -

DR CREATI: Yes.

MR BOULTEN: - - - as opposed to a health – sorry, a mental health care plan. Is that a different concept?

DR CREATI: Behaviour – could overlap a lot. Mental health, if you talk – it could overlap a lot. I mean, it’s semantics. I would need to look at what’s in each of these to comment on that, but it could overlap a lot.

MR BOULTEN: So that if all that happens at the moment is that someone keeps an eye on them, there’s an initial assessment of risk, really there needs to be follow through with a planned response of some sort, and probably multidisciplinary.

DR CREATI: Yep. I’d say that would be good.

MR BOULTEN: Okay. So young people and children in detention, particularly in the Northern Territory, almost inevitably have been exposed to some trauma, and so trauma informed practice including health practice is a given as a necessity.

DR CREATI: I would agree – I would agree with that.

MR BOULTEN: You all agree with that?


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PROF KINNER: Yes.

MR BOULTEN: So does that apply to, for instance, trauma training for everybody who deals with a detainee? So teachers in the school?

PROF KINNER: Yep.

DR CREATI: Yes.

MR BOULTEN: Youth Justice Officers, case workers, the supervisors.

DR CREATI: Yes. I understand I know in Victoria, VACCA, the Victorian Aboriginal Child Care Agency will go out to schools to give professional development to staff about trauma informed management of kids who are seen as naughty kids behavioural, but that’s a reaction to the trauma. So yeah, I think – I agree. That’s vital and again it’s not a one-off training. There’s training and there’s culture, I think, and leadership. And I think there – we just can’t do the training if it’s not enforced in the workplace.

MR BOULTEN: You’ve emphasised how important it is in your practice, Dr Creati, to have a culturally tuned in person - - -

DR CREATI: Yes.

MR BOULTEN: - - - involved in the assessments, involved in the interaction - - -

DR CREATI: Yep.

MR BOULTEN: - - - with the patient or the person. What about Aboriginal traditional medicine in these settings?

DR CREATI: I can’t comment. I mean, I don’t know that – I can only speak from the Victorian context. I’m not the best person to answer that, except I agree it needs to be culturally acceptable. That needs to be led by the local community, I’d suggest – I would suggest.

MR BOULTEN: Well, just going to that, how important is it for - - -

DR CREATI: In my setting, very important.

MR BOULTEN: For cultural – culturally appropriate outcomes for there to be input from the community that practices the culture?

DR CREATI: I don’t see how you can could get them without input from the community. I don’t see how you could reach those outcomes without input from the community. And again, the college would recommend any assessment and plan needs to be culturally appropriate, College of Physicians.


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MR BOULTEN: Yes. I think that will do it. Thank you.

COMMISSIONER WHITE: Thanks, Mr Boulten. Ms Graham.

MR DIGHTON: Yes. Ms Graham ..... thank you.

MS GRAHAM: Dr Creati, Professor Kinner, my name is Graham and I represent the Central Australian Aboriginal Legal Aid Service, and a number of young people who have been held in detention in the Northern Territory who I’ll refer to as BF, BK and BW. I wonder if I could start by just taking you to a scenario relating to one of my clients and then I’ll ask you some questions about it. The scenario is this: that BF was in detention, he received news that his mother had passed away. That was done by arranging for him to be able to leave the centre and meet with his grandfather who had told him about the passing of his mother.

He was then returned, after a very short time with his grandfather, to the centre, and put in an at-risk cell. At that point, he hadn’t made any outward expression of self-harm or intent in that regard, and he was kept in that cell without any access to a counsellor or anything of that nature. He wasn’t given any certainty about how long he’d be kept there, and was asking a medical practitioner who attended, “How can am I going to be here for?” And he was told, “The guards will let you know.” And he was asking for access to the family supports that he had within the centre, because some of his relatives were in the centre, other children. That was denied. He was – asked to be able to be outdoors, and that was denied, and he was kept in this cell for two to three days. I assume from your earlier evidence that you would both agree that that’s not a best practice response to the scenario that existed; is that right?

DR CREATI: I go back to my point. I don’t understand why isolation is the first response to at-risk. I mean, I think observation, and if a kid’s really considered at risk, there would be an intermediate step of possibly having continuous observation in – on the unit, where he can mix freely with other kids. So I don’t think isolation – it just seems to me what I’m hearing, at-risk isolation, and then the assessment, again getting to know if that kid is at risk or not, does he have thoughts of self-harm or not, does not seem – I can’t hear that as happening. I think we need to be careful. We don’t criticise youth justice practitioners if they’re following procedure. The question is: why is that the procedure and who’s making that decision?

PROF KINNER: I just add to that, I mean, obviously we don’t know all of the details of the circumstances, but even if it were the case that solitary confinement was considered appropriate, it’s not in and of itself a sufficient response. It may – it may or may not have been necessary to respond in a way that prevented that young man from potentially harming himself, but that’s not the solution, that’s not the entirety of the response.

DR CREATI: Yes. And on first principles if someone’s grieving they need to be with people, and I think this balance of – yes, “This kid hasn’t died on my watch, we’ve mitigated the risk,” versus support for that kid and I think – yes, success, he


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hasn’t killed himself. Possibly. But, you know, have you traumatised him? Possibly, yes. Have you prevented – interrupted his grieving process? Possibly yes, likely yes. But – you know, it’s – he hasn’t. So we need to see what’s driving these responses, and what’s in the best interest, and that would need to be articulated clearly.

MS GRAHAM: One of the things that BF has said is that if he had been having thoughts of self-harm he would not have felt comfortable in telling anyone about that, because he would have been afraid that that would have led to him being kept in the little white room for longer. Do you see that there’s a real danger in children knowing that if they express their feelings about their poor mental health, knowing the consequences are almost certainly to be isolated, that there’s a real risk in children’s mental health exacerbating within themselves without them seeking help?

DR CREATI: Yes.

PROF KINNER: Yes.

DR CREATI: And it brings up another point about the independence of the health and mental health service. Are they contractors who have medical independence or are they employed by youth justice directly, in which case the kids will know that and there’s – I think, in my experience, certainly talking to Andrew Kennedy who, chair of the policy document for the College, that if there’s a perception that the health service is aligned with corrections, that they may not disclose as well. So it gets to the issues of confidentiality, managing reporting and, like you said, the anticipated consequence of disclosure. Yeah, I can see that happening.

MS GRAHAM: Dr Creati, I have a few questions about your time at Parkville. You were the head of medical there.

DR CREATI: Yes.

MS GRAHAM: Were you – was that a full-time position based on site at the Parkville Youth Detention Centre?

DR CREATI: So it’s – the way it was constructed was manager, mental health service, medical service, and I was there four days a week, yeah. And part of the reason, I mean, I don’t – part of the reason it was a potentially a full-time job, but negotiated four days, but there was – part of the reason canvass consolidating from part-time practitioners to having continuity with a full-time or near full-time and I was on call for the day I wasn’t there. I was over at the hospital and could come across, yes.

MS GRAHAM: And was there a full-time or close to full-time mental health clinician based on-site?


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DR CREATI: Yes. So there was a forensic psychiatrist, Bob Adler, four days a week, another psychiatrist one day a week, there was a psychiatric registrar on site four days a week, so medical, so could prescribe, apart from that I don’t know ..... but there was at least three, I would say forensic psychologists on-site every day. Some they worked .4, some they worked .6, .8, but there was continuity in handing over. Maybe not – maybe none of them were there every day, but there was a presence of mental health psychiatry every day and handover, and – you know, if the registrar needed backup or consultation, Bob would answer the phone, so certainly availability of opinion every day.

MS GRAHAM: And did you find that, as a consequence of having on-site health professionals, that any concerns around an escalation of the situation with the child could much more readily be handled by way of successfully deescalating the children, and quickly.

DR CREATI: I can’t answer that specifically, because we could certainly – de-escalation at the time I don’t know. Certainly, we were able to get a better understanding of what may have caused the escalation.

MS GRAHAM: And did you - - -

DR CREATI: And there was – sorry, for some kids who had been heightened there was medication options possibly to prevent the management of anxiety or impulsiveness, for example, and thought disorders, so there was management of that which presumably – I’m not a psychiatrist, but it had positive effects on behavioural issues.

MS GRAHAM: Was it your common experience that children could be deescalated from any distress or misbehaviour rather than the common response being seclusion?

DR CREATI: I suppose I wasn’t on the units enough – on the floor units to see that. I can’t comment. I was working from the health clinic most of the time, so I can’t comment on specific – yeah.

MS GRAHAM: In your view – you’ve talked about the importance of mental health professionals coming into the centre to do the assessments when a child is considered to be at-risk - - -

DR CREATI: Yeah. If they’re not already there .....

MS GRAHAM: - - - if they’re not already there. I take it your preference would be that they are already there, and that they’re easily accessible?

DR CREATI: Yes.

MS GRAHAM: But if they’re not already there, they come in.


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DR CREATI: Yes.

MS GRAHAM: And is it your view that what should be happening is those health professionals should ideally be staying until the situation is resolved to a satisfactory level of wellbeing in the child?

DR CREATI: It’s important not to manage behaviour. You need to separate the behavioural management by Youth Justice Officers on the floor in the units from the medical service. So they wouldn’t be staying on the unit talking the kid down, necessarily, but advising youth justice in their role to do that, and hence the importance in the training for youth justice.

MS GRAHAM: What about where we’re talking about genuine concerns for the mental health of the child? Would you expect the mental health professionals to remain - - -

DR CREATI: They’d have to make that judgment, I think, yeah.

MS GRAHAM: Could I just ask a couple of questions also now about follow-up on release.

DR CREATI: Yeah.

MS GRAHAM: The young man, BF, that I spoke about was released from custody after the passing of his mother. He spent some short time in the community and then came back into detention. He had difficulties in detention as basic as not being able to obtain appropriate clothing to go to his mother’s funeral upon his release. What would you ideally see as the supports that should be put in place when a child like BF is likely to be released and then is released?

DR CREATI: I think we could talk about the process of determining what supports he needs to be in place. I mean, I don’t know BF, but you know, and family and those who know him would need to be involved. So there would need to be some planning. I can’t comment – I can’t answer your question except to say there needs to be process that works towards that which would involve family community, child protection if appropriate, the kid himself, and school, all of that.

MS GRAHAM: One of the difficulties in youth detention is that there’s often an unknown about when the child will be released, because they’re on remand.

DR CREATI: Yes.

MS GRAHAM: And that’s a big part of the population in detention.

DR CREATI: Yes.


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MS GRAHAM: Can you give any assistance about what kind of processes can be put in place where you have that as a reality, but don’t know when a child is going to be released?

DR CREATI: It’s like your mum being discharged from the nursing home. You don’t know if she’s going home that day or not. It’s a mess. I know for the kids, for example, on methadone, I mean I have to do the scripts, get them to the chemist, arrange a provider, and the kid will come back. So for some kids it’s really important that that plan is in place, anticipating that they may be released. You just can’t escape that. Methadone is probably the best example because it needs to continue, otherwise the kids may use and overdose, and the consequence ..... so yeah, it is a lot harder. And, look, it gets back to how you resource your staffing, because you just can’t have medical staff in there just – all they do is see the patients and go home. I reckon two thirds of my time there I was planning, and you need to resource that, it’s not direct clinical care. It’s related to clinical care, but it’s not face-to-face clinical care. So you need to anticipate the scenarios where it’s important, invest in it. Now, eventually the kid will get released. So it’s not completely wasted work having gone through the process and identified in the community who will – where this kid will transition to, but it needs to be resourced and planned.

MS GRAHAM: Just got one final topic, and it’s in relation to anticipating or predicting critical periods in a child’s experience in detention, and I’ve just got two examples. One of them is around the transfer of a child from, say, Alice Springs Detention Centre up to Darwin where they’re a child from Central Australia. And I’m interested in your views about what structures should be put in place in anticipation of such a transfer to ensure the mental and physical wellbeing of that child.

DR CREATI: So is he being transferred from a facility to another facility?

MS GRAHAM: From one facility to another.

DR CREATI: Okay. So you know, assessments need – it goes back to this whole thing we discussed at the start, information in helps you have your plan and if there’s information, assessments, mental health, medical assessments, all of that needs to come up with the kid. We do anticipate that any transition may heighten, or be a period of adjustment, so you may need to increase your observations, direct observations to manage that risk because transition and adjustment does increase the risk of self-harm and may be acting it up, so if there’s a behavioural management plan, for example, send it up. It’s – there’s computers these days. Send them up.

MS GRAHAM: Do you need to go further than that though, Dr Creati?

DR CREATI: Sorry?

MS GRAHAM: Do you need to go further and put in protective measures such as planning around how that child is going to access their family and how that child is


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going to feel secure in an environment which is a thousand kilometres away from where their home is.

DR CREATI: It’s going beyond the scope of medical healthcare. But you – I mean, for social and emotional wellbeing – like I said, 160 hours a week, mental health care is maybe one or two formally, there’s connection with family, school, education, friends, makes you happier and better adjusted, so I’d say that’s – in holistic care, if that’s possible, that would be good.

MS GRAHAM: Well, would you ideally see some collaboration between the custodial staff and the mental health staff to say - - -

DR CREATI: I think I’ve said that many times. I’ve said that many times.

MS GRAHAM: To say, “This child’s about to be transferred, the psychologist up north needs to be able to check on him.” That kind of thing.

DR CREATI: Yeah.

PROF KINNER: That’s such a given it didn’t occur to me to point it out. That should absolutely be the case.

DR CREATI: I mean, you want collaboration, not adversarial relationship, “The doctor wants this, that means I’ll have to get another person in to cover the shift.” I mean, it needs to be trusting and adversarial and collegial. So ideally health should sit with Youth Justice’s program, not health service independent of Youth Justice’s program. So often there might be contractors, drug and alcohol service, health service, school, which have no capacity as contractors to meet and talk about the kids, and I could give an example of a kid came in detoxing off ice, I’d prescribe medical detoxification. I get, as part of the bail application youth justice wanted to link this kid with a drug and alcohol worker, who came in and met the kid possibly, I didn’t speak with the drug and alcohol worker. So with different contractors you run the risk, in someone else’s precinct, of different contractors providing service with no sense possibly - - -

COMMISSIONER WHITE: Well, you need a coordinator.

DR CREATI: You need a program, and you need a forum and you need an individual case discussion. And if you run in silos, I think you’re describing what would happen if you ran in silos.

COMMISSIONER WHITE: Is that your questions, Ms Graham?

MS GRAHAM: Yes, thank you.

COMMISSIONER WHITE: Anyone else, Mr Dighton?


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MR DIGHTON: Commissioner, there’s one final, Mr O’Connell for AM. I do note that Dr Creati and Mr Kinner have been very generous with their time, but 4.45 is the - - -

COMMISSIONER WHITE: That is the last moment.

MR DIGHTON: The last.

COMMISSIONER WHITE: Well, Mr O’Connell, lots of these things have already been explored at some length so I’m sure that you’re going to ask an entirely original question.

MR O’CONNELL: I can’t guarantee that, Commissioner, but I’ll do my best. My name is O’Connell, I represent three former detainees. I want to focus in particular on one.

COMMISSIONER WHITE: I think this might be about catching aeroplanes.

DR CREATI: It is.

COMMISSIONER WHITE: So yes.

MR O’CONNELL: I want to focus on one of those former detainees who, whilst in detention was diagnosed with the following: emerging borderline personality disorder, conduct disorder, persistent depressive disorder, and antisocial behaviour disorder. Does that sound like someone with significant mental health issues?

PROF KINNER: Yes.

DR CREATI: Yes.

MR O’CONNELL: And could all of those diagnoses be related or connected in some way to childhood trauma?

DR CREATI: It could be, yes.

MR O’CONNELL: And could childhood trauma be on top of those diagnoses?

DR CREATI: Yes.

MR O’CONNELL: And you mentioned before about the brief blip opportunity that you have with a child in detention. The child that I’m talking about spent two years, not consecutively but cumulatively, two years between the ages of 13 and 18 in detention. And in her statement, I’d just like to read you a paragraph, she says this:

I saw a lot of different people during my time in detention. Some of them were okay. Most of them I didn’t connect with. A lot of them just repeated the same


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questions over and over again. I didn’t see the point of a lot of it. I didn’t really see the point of mental health mob. They would ask me all those questions and then nothing would happen. Nothing would change at Don Dale. I was still being isolated. The guards would still act the same way towards me. I didn’t learn any special skills, and no one could explain to me what I was doing wrong, why I was doing it, and what I could do to change it.

Is there anything in that paragraph that I’ve read out that stands out to you that could have been addressed or should have been addressed?

DR CREATI: I mean, it’s not uncommon for kids not to engage in mental health services, and we have to be careful whether they’re voluntary or involuntary. We still work in a country where by and large mental health services are voluntary and should be. The – speaking to the same person over and over – sorry, different person over and over again actually reduces the chance of engagement, and kids are more likely to engage with someone familiar, so that seems like a disincentive to engage. Skills thing is interesting. I think, even without engagement in formal mental health services it’s how you fill in those other hours of the week. School, vocational training, recreation.

So – which are all good for – connection with family which are all good for your social and emotional wellbeing and ultimately your mental health. So you don’t have to necessarily receive formal mental health services. Ideally, this kid I reckon would have benefitted from it, but most of us are pretty happy people without seeing the psychiatrist, because we’re happy at work, not working too hard, you know, got friends, got family, have some recreation, I hope. But, you know, again my point is it’s not uncommon for kids not to engage but it’s what else, and if she’s doing nothing during the day, that worries me.

MR O’CONNELL: If – someone in her situation with her diagnosis, would a couple of sessions a week of one hour of counselling be sufficient?

COMMISSIONER WHITE: I’m not sure that - - -

DR CREATI: I don’t know. I mean - - -

COMMISSIONER WHITE: It’s too abstract, isn’t it.

DR CREATI: It’s too abstract, to be honest.

COMMISSIONER WHITE: Yes. I don’t – too hard.

DR CREATI: I mean – need – and it needs – you would need to if counselling was appropriate, but we’ve talked about the proper .....

COMMISSIONER WHITE: I think you can only address systemic questions to these witnesses.


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MR O’CONNELL: Yes.

COMMISSIONER WHITE: It’s too difficult for them. They’re professional people who, you know, take a lot of care about diagnosis and so on. So maybe they need to be a bit broader brush in the questions.

MR O’CONNELL: Yes. Well, I understand the answer to your question, Doctor, was there needs to be a comprehensive approach that focuses on things beyond just counselling.

DR CREATI: Yeah.

MR O’CONNELL: On the whole social, emotional package. Who should be responsible for overseeing that whole approach?

DR CREATI: Well, within the youth justice context, Youth Justice, they have to have a program. It’s – what – that’s the program, you know.

PROF KINNER: Sorry, can I just add to that. You asked that question, who’s responsible. I think in there lies a concern that I have. If you look at the AJJA principles, the Australian Juvenile Justice Administrators principles that were released last year, it, for me, is a bit telling about whether juvenile justice systems currently see themselves as having that responsibility to a sufficient degree. There’s one of those 10 principles that is makes reference to health needs, but if you drill down into the justification of making that a principle, it’s because there’s a perceived link between those health needs and re-offending and that implies, of course, that those services will focus on health needs to the extent that they’re perceived to be risks for re-offending, not to the extent that it’s important for the young person’s wellbeing.

COMMISSIONER WHITE: It might be a happy coincidence.

PROF KINNER: There’s overlap, but they’re not the same.

COMMISSIONER WHITE: No, the goals aren’t the same.

MR O’CONNELL: Nine days after my client received those diagnoses, she was placed at risk, and it ended up being a period of over four days during which there were three serious self-harm attempts requiring her hospitalisation. On each occasion, she was returned from hospital and isolated again and then committed a further attempt and this went on and on for four days. She said during the course of all of that:

I hate being in this room. All I want to do is to come off risk.

Can you – you’ve touched on isolation not being a response to at risk, but here where you have a situation where it’s being expressed that that is the reason why she is


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acting in that way and she has been to hospital and come back again, would you expect something else to have happened?

DR CREATI: I’m not privy to the assessment of the mental health person.

COMMISSIONER WHITE: I think you’re offending again.

DR CREATI: I can’t comment on ..... case management, sorry.

COMMISSIONER WHITE: Don’t do it. Don’t do it.

MR O’CONNELL: No. During that period of time, her family were never notified. Is that something you can commit on from a health perspective?

DR CREATI: Again, I mean, if families are to be part of the solution, we need to look at process. I mean – and again, does the kid want to be in touch with the family or not? I mean, I don’t - - -

COMMISSIONER WHITE: Mr O’Connell, I thought you were – just a minute, Mr Creati. I thought you were going to try and elevate it above the particular, because these gentlemen need to catch an aeroplane.

MR O’CONNELL: Yes. Yes. I won’t be much longer, Commissioner.

COMMISSIONER WHITE: Well, could you just try and be focused on the questions they can answer.

MR O’CONNELL: Yes. Well, I take it that you have both seen the Northern Territory’s youth – current youth at risk procedure.

DR CREATI: I’ve seen part of it.

MR O’CONNELL: So Dr Creati, you’ve seen part of it.

DR CREATI: Part of it, yeah.

MR O’CONNELL: Yes. And the initial part of the procedure – sorry, the number for identification is WIT010900010722. My friend would like it on the screen.

COMMISSIONER WHITE: Can you make this just one or two questions, please. The time is ticking past, Mr O’Connell.

DR CREATI: I haven’t got it in front of me. Anyway - - -

MR O’CONNELL: Well, look, I’m just going to proceed with the question. The first part of it is if a detainee is placed at risk by the youth detention staff – this is number 1 – they will immediately place the youth in a secure monitored location.


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Can I understand from what your evidence was before that that doesn’t need to be a cell?

DR CREATI: Doesn’t need – yes. I mean, again, if the – it depends – risk, harm to others, harm to themselves, that seems all inclusive and not discriminate. And, you know, observation and assessment, so doesn’t necessarily need to be isolated, but in some cases they may.

MR O’CONNELL: And the decision to place in isolation is – shouldn’t be made lightly.

DR CREATI: Agree.

MR O’CONNELL: And the notification to mental health should be made as soon as possible and that should be mandatory.

DR CREATI: Can be made as soon as possible. I’d suggest it’s done as routine, whether you call that mandatory or not, but I think – best care would say a mental health assessment is vital, mandatory.

MR O’CONNELL: And then once that notification is made to mental health, it becomes their responsibility in some sense.

DR CREATI: No. We talked about that before. The safety is a partnership between Youth Justice and the health team, so the continuous observations will be youth justice’s response. The assessment of the cause and then teasing it out is teamwork. So they’ve got different roles. So I think it’s – ultimately, it’s a shared responsibility. I would see it as shared responsibility.

MR O’CONNELL: Would you agree that there should be an overarching principle that the youth should be out of isolation as soon as possible?

DR CREATI: Yes.

MR O’CONNELL: And would you agree that that, in your experience, means once the acute episode is over?

DR CREATI: If it’s needed – once it’s safe.

COMMISSIONER WHITE: We’ll make that the last question, Mr O’Connell. Thank you.

DR CREATI: Once it’s safe.

MR O’CONNELL: Thank you, Commissioners.

DR CREATI: I mean, the episode may not be safe.


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COMMISSIONER WHITE: Mr Dighton, do you have some questions that you want - - -

MR DIGHTON: I do not, Commissioners, if the professor and the doctor can be released from their summonses.

MR O’CONNELL: Commissioners, sorry. Could I just ask one last question?

COMMISSIONER WHITE: No.

MR O’CONNELL: I did get 20 minutes, and I’ve only had half of that.

COMMISSIONER WHITE: Yes, but you wasted half of it. What is the question?

MR O’CONNELL: Well, the last question is a lot of us here are interested in the effects of the youth being isolated in the deplorable conditions that they often were. Is it your evidence that to properly understand that, we would need to hear from a forensic psychiatrist?

DR CREATI: Forensic health, mental health worker, a good forensic psychologist would be adequate, as long as, again, developmentally appropriate, culturally appropriate, used to speaking with kids. Psychiatrists can prescribe; psychologists can’t. In terms of understanding, the psychologist is usually adequate.

MR O’CONNELL: It’s not something that you can comment on.

DR CREATI: I just did.

COMMISSIONER WHITE: He did. He did, Mr O’Connell.

MR O’CONNELL: Yes. Yes. Nothing further.

COMMISSIONER WHITE: Thank you. Now, Mr Dighton, you’re asking that Professor Kinner and Dr Creati be released from their summonses?

MR DIGHTON: I am. Thank you, Commissioners.

COMMISSIONER WHITE: Do you have any questions?

COMMISSIONER GOODA: I’m fine, thanks.

COMMISSIONER WHITE: Thanks, Professor Kinner and Dr Creati.

DR CREATI: Thank you very much.


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COMMISSIONER WHITE: We’re really obliged to you, and we’ll be able to follow up some of the references in your précis paper, too, and your research papers that you’ve mentioned, so it’s of great assistance to us.

PROF KINNER: Thank you.

DR CREATI: Thank you for the opportunity.


<THE WITNESSES WITHDREW [4.44 pm]

COMMISSIONER WHITE: Is there anything else we need to disclose this afternoon.

MR DIGHTON: No further business, thank you.

COMMISSIONER WHITE: No more tenders.

MR DIGHTON: No more tenders.

COMMISSIONER WHITE: Right. Thank you. 9.30 tomorrow, Mr Dighton?

MR DIGHTON: Yes, please.

MATTER ADJOURNED at 4.44 pm UNTIL FRIDAY, 24 MARCH 2017


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Index of Witness Events

DAVID WILLIAM FERGUSON, SWORN P-1702EXAMINATION-IN-CHIEF BY MR MORRISSEY P-1702

THE WITNESS WITHDREW P-1728

STUART KINNER, AFFIRMED P-1729MICK CREATI, AFFIRMED P-1729THE WITNESSES WITHDREW P-1765

Index of Exhibits and MFIs

EXHIBIT #124 STATEMENT OF DAVID WILLIAM FERGUSON P-1702

EXHIBIT #125 MEMORANDUM FROM MR FERGUSON TO THE CORRECTIONS COMMISSIONER

P-1715

EXHIBIT #126 SUPPLEMENTARY TENDER DOCUMENT 83 P-1717

EXHIBIT #127 EMAIL TRAIL BETWEEN MR FERGUSON AND COMMISSIONER MIDDLEBROOK

P-1719

EXHIBIT #64.214 REPORT CONCERNING FRUIT THROWING INCIDENT

P-1719

EXHIBIT #142 PRECIS, CV AND ANNEXURES FOR PROFESSOR KINNER

P-1730

EXHIBIT #143 DOCUMENTS, PRECIS AND CV OF DR CREATI P-1731

.ROYAL COMMISSION 23.3.17 P-1766©Commonwealth of Australia

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Documents

TranscriptCreator Web viewMR McAVOY: Good morning Commissioners. Mr Morrissey is here and will take the first witness, Mr Ferguson for the day. However, there was a piece of CCTV