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On the matter of secure care

by PeakCare Qld on 25th February 2016

Home -> Articles -> 2016 -> February -> On the matter of secure care

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The possibility of Queensland children being placed in secure care is again emerging as a hot topic of discussion.

In March 2013 during the course of the recent Queensland Child Protection Commission of Inquiry, PeakCare released a discussion paper called, ‘Secure Care – Needed or Not?’ in response to written submissions that were being lodged with the Inquiry and statements being made by a number of witnesses appearing at the Inquiry’s public hearings. A few months later, the Inquiry brought down its findings and amongst its 121 recommendations, there was one – Recommendation 8.9 – which stated:

“If and when the Queensland Government’s finances permit, the Department of Communities, Child Safety and Disability Services develop a model for providing secure care as a last resort for children who pose a significant risk of serious harm to themselves or others. The model should include, as a minimum requirement that the department apply for an order from the Supreme Court to compel a child to be admitted to the service”.

The Queensland Government accepted this recommendation in principle, understanding that the introduction of a secure care option would need to be carefully researched, planned and resourced. Recently, the Department of Communities, Child Safety and Disability Services contracted KPMG to develop “an evidence base and options for contained therapeutic care approaches to placement services in a Queensland context”.

The following outlines some of the major factors to be considered when contemplating the possible introduction of a secure care option - in whatever form this might take. PeakCare fully recognises that this is a contentious issue with views that are strongly held either for or against its introduction. PeakCare also recognises that there is no reason to believe that those arguing the case – either for or against – have anything other than the best interests of children in mind.

My guess is that many of you who are reading this blog will already hold an opinion – either for or against – the introduction of secure care. If that’s the case, I invite you to set aside your opinion for at least the next few minutes so that you can take on board and consider the information that follows.

There is no intention held by PeakCare to reach a conclusion or state a definitive opinion about secure care within this blog. Rather, our purpose is to outline at least some of the many complex factors that need to be fully and properly considered and ensure that decisions that are to yet to be made are made in an informed manner.

As a society, we place a high value on personal liberty and the unlawful deprivation of someone’s liberty carries significant penalties under the Criminal Code. There are however some limited circumstances in which the State has deemed it necessary to create laws that enable people – both adults and children – to be detained against their will if necessary.

Chiefly, these circumstances relate firstly, to the criminal justice system where both adults and children can be detained on remand or sentence in response to alleged or proven criminal acts. In these circumstances, a person – child or adult - is deprived of their liberty and incarcerated as a penalty for their behaviour. In other words, the deprivation of their liberty is intended to serve as a punishment. There are also agendas of seeking to protect the community from crime and to rehabilitate those who have offended.

The second set of circumstances relates to the mental health system where certain legislated provisions exist that allow people – both adults and children – to be involuntarily detained for limited periods of time when it has been assessed that the state of the person’s mental health places either themselves or others at significant risk.

What we are talking about when we contemplate the introduction of secure care is another and distinctly different set of circumstances under which the State believes it is justified in depriving a child of their liberty. The significance of extending the State’s authority to intrude upon a child’s liberty in this way must not be under-stated, especially when it is being proposed that this authority would be applied exclusively to children – that is, an adult in similar circumstances would not be made subject to this same level of intrusion.

It’s interesting to note that secure care is being considered at the same time as the Queensland Parliament’s Legal Affairs and Community Safety Committee is examining the possible introduction of a Human Rights Act. This is not to suggest that a Human Rights Act would necessarily prevent the introduction of secure care. It could be anticipated however that a Human Rights Act would, at the least, increase the onus placed on the government to engage the public in its decision-making about any laws that are under consideration which may impinge upon the human rights of certain groups (in this case, children) and hold the government to a high level of account for its decisions.

What becomes very clear within this discussion is that secure care should not be used if it is simply being seen as a means of filling a gap or compensating for inadequate policies, service responsiveness, competence or resourcing of either the youth justice or adolescent mental health systems. If it is ascertained that that there are problems that lie within either one or the other of these systems, then that is where the problems belong and it is there – within those systems - where the problems should be fixed. To do otherwise would represent extremely flawed decision-making and constitute very poor public policy.

It’s worth noting, of course, that a number of witnesses during the Child Protection Inquiry’s public hearings commented on the paucity of specialised adolescent mental health services in Queensland and this is an issue of concern that is again being raised during the current Inquiry into the closure of the Barrett Adolescent Centre.

If secure care is to be introduced, it is incumbent upon the government to very clearly define its purpose and establish discernible differences between the purpose of secure care and the purposes for which children can be detained within either the youth justice or mental health systems. The government must also ensure that these differences are stated as clearly possible and understood. It’s likely however that this will be more easily said than done.

Those advocating for the introduction of a secure care option quite rightly state that it should be used for a therapeutic purpose only and not as a form of punishment. During the Inquiry’s public hearings however and in public commentary that has occurred since then, secure care has been described as falling somewhere in between residential care and youth detention. This is alarming as it implies that not only secure care, but also residential care, has some level of punitive purpose attached to it. This is, of course, a notion that PeakCare rejects entirely.

Some witnesses during the Inquiry’s public hearings also commented on it being unlikely that many children would perceive their stay in secure care as anything other than a form of punishment. This clearly underlines the challenges that will exist, if secure care is introduced, in achieving and maintaining clarity about its purpose. The lines between secure care, youth detention and detention within a mental health facility should not be blurred and their different purposes should not become confused.

Following the release of our discussion paper, ‘Secure Care- Needed or Not’ in 2013, PeakCare received a number of reports, largely anecdotal, about young people who have benefitted from their placement in secure care in other States. Largely, these reports focused on the capacity provided by secure care to protect these young people from significant risks to their safety. Secure care was portrayed as a life-saving measure that also provided time and opportunity for therapeutic interventions to gain some traction.

Certainly, as a practitioner I’ve worked with a number of young people whose behaviours have given me many sleepless nights worrying about whether they will be alive or not the next day. I know full well what that’s like and I fully appreciate that perhaps the most compelling argument for secure care concerns the capacity it seeks to provide in removing children from harm’s way and keeping them alive.

These anecdotal reports about ways in which some children have benefitted from the experience of secure care should be balanced however with the body of evidence that indicates that the detention of children in secure facilities, for whatever reason, can create or escalate suicidal ideation, self-harming behaviours and behaviours that are intended to harm others; it can isolate and institutionalise children; and it can diminish their sense of control.

I’m quite sure that those reading this blog who have worked in secure settings such as a youth detention centre can attest to the profoundly debilitating impact that custodial care – the locking of the door – has on many children and young people. As someone who has previously managed a youth detention centre and been a director of the State’s youth detention centres, I am one of those people who have witnessed this first-hand.

There are some measures that can be taken to ameliorate this impact, at least in part, but for some children it can never be eliminated. In respect of these children, we must exercise extreme caution in not grabbing at a solution that may end up becoming a much greater problem than the original one that secure care was meant to solve.

If the decision is made to proceed with introducing secure care, this will require legislation to be passed that permits children to be detained in a secure care facility and that stipulates the grounds for their detention, again bearing in mind that these legislated powers would apply exclusively to children. Presumably, a case would need to be argued that, due to the immaturity and vulnerability of children, the State is entitled, or perhaps even obliged, to intrude upon their human rights and deprive them of their liberty, if no other means exist to protect them from death or significant harm.

Of course, Queensland is not a stranger to laws of this kind with the Childrens Services Act 1965 that was replaced by the Juvenile Justice Act 1992 and Child Protection Act 1999, having included provision for the indefinite detention of children who were made subject to care and control orders. This order could be made when a court determined that the child was likely to fall into a life of vice or crime or addiction to drugs, the child was exposed to moral danger, or the child was or appeared to be uncontrollable. You need look no further than the findings of the 1999 Forde Inquiry to be reminded of some of the atrocious misuse of powers and the past abuse of Queensland children who were made subject to these orders. The groups who were especially vulnerable included Aboriginal and Torres Strait Islander children and girls.

This raises the question about what safeguards would need to be put in place to ensure that lessons from the past in relation to the detention of children are not forgotten. For example, who should be charged with the responsibility of making the decision that secure care is warranted? Is it a decision that should be made by the Supreme Court as recommended by the Inquiry? If so, might this result in undue delays to the decision-making and could it risk the initiation of an adversarial court-based process that further alienates children from those who are attempting to assist them?

Or should it be a decision made by a panel of expert practitioners, as recommended by some? Whilst this might allow for decisions to be made in a timely manner, would it provide the necessary level of accountability and safeguards concerning the rights of children that courts are usually the best placed to provide? And what are the avenues that should be made available to children to seek reviews or appeals of decisions made about their detention in secure care?

Should there be a maximum time period set for the detention of children in secure care? In Victoria and Western Australia, for example, a child’s length of stay in secure care is limited to 21 days with provision for this to be extended by a further 21 days. Or should the time periods be more open-ended and, as argued by some, informed by an assessment of need rather than based on a blanket regulation?

Who should manage and administer a secure care facility? A government or non-government agency? Where should facilities of this type be located - taking into account the enormous challenges posed by Queensland’s geography in enabling children to remain connected with their families, home communities and, in the case of Aboriginal and Torres Strait Islander children in particular, their culture and country.

Assuming that secure care is introduced, there are a host of other questions to be asked and answered. For example, how secure is secure? ‘Secure’ is often thought of as an ‘absolute’, but it is a mistake to do so. Levels of security are best regarded as being located on a continuum. Are we prepared, for example, to make use of security measures that might inflict injury upon children who are attempting to escape a secure care setting?

In the words of Tim Carmody in his role as Commissioner during the Inquiry’s public hearings, “What would it look like on the ground? Would it have chain wire with razor wire on the top or would it have guards with guns? What would it have, shrubs?”

Within this blog, I’ve outlined just a few of the complex issues that need to be well thought through and considered when contemplating the possible introduction of secure care. You are invited to discuss these with your colleagues and review the additional information contained within PeakCare’s discussion paper, ‘Secure Care – Needed or Not?’ which provides further detail about the use of secure care in a number of other Australian jurisdictions, noting that not all states and territories have elected to make use of a secure care option. It also features some examples from overseas.

The discussion paper also describes the relevant United Nations conventions and rules – the Rules for the Protection of Juveniles Deprived of their Liberty, the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the Convention on the Rights of the Child – all of which provide a useful framework for further considering the possible introduction of secure care. To obtain a copy of this paper, go to PeakCare’s website – peakcare.org.au - and look under the heading Inquiries or click here.

PeakCare would like to hear from you about your thoughts and views in relation to the possible introduction of secure care. Comments and questions can be emailed to lwegener@peakcare.org.au or enter your comments below.

Thank you for the attention you have paid to this important matter. I hope that this blog has given you some food for thought.

Lindsay Wegener

Executive Director

PeakCare Queensland