CJK [2017] QCAT 435

CITATION: CJK [2017] QCAT 435 PARTIES: CJK APPLICATION NUMBER: GAA7849-17; GAA7850-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 3 November 2017 DELIVERED AT: Brisbane ORDERS MADE: On 27 September 2017: 1. The Public Guardian is appointed as guardian for restrictive practices (general) for CJK. 2. The guardian for restrictive practices (general) is to provide a copy of the current Positive Behaviour Support Plan to the Tribunal by 4:00pm on 11 October 2017. 3. The guardian for restrictive practices (general) is to provide a copy of any updated Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the appointment. 4. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years. GUARDIANSHIP 5. The review of the appointment of a guardian is adjourned to a date to be fixed and notified to the parties. -- 1 of 8 -- 2 6. The Tribunal directs that the Public Guardian provide the Tribunal with a guardianship report which addresses whether there is a need for decisions to be made about personal matters for CJK by 4:00pm on 11 October 2017. CATCHWORDS: GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult has impaired decision-making capacity from moderate to severe intellectual disability – where adult manifests challenging behaviours – where adult has had instances of verbal aggression, property damage, and physical aggression – where short-term approval given for chemical restraint subject to conditions – whether there is a need for a guardian for restrictive practices Guardianship and Administration Act 2000 (Qld), s 80ZD APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on 27 September 2017. REASONS FOR DECISION CJK is a 48-year-old man who resides in a co-tenancy arrangement through Accommodation Support and Respite Services (ASRS). He moved to that accommodation in April 2017 having previously resided in an emergency short term placement within the grounds of Multicap. He has been diagnosed with a moderate to severe intellectual disability, autism, epilepsy, schizophrenia, depression, obsessive-compulsive disorder, and some hearing loss. Background On 10 April 2015, the Department of Communities, Child Safety and Disability Services (DCCSDS) authorised the use of chemical restraint (fixed dose) for CJK under a short-term approval for Multicap Accommodation Services. The letter contained a Chemical Restraint Clarification Letter from Dr G. McGrath. CJK had displayed difficult behaviour that resulted in harm to himself and to other people. His verbal aggression involves yelling, swearing at others, and making threats to harm others. He has caused property damage by -- 2 of 8 -- 3 slamming doors and damaging personal belongings and items. There have been instances of physical aggression where he has hit out at others and thrown items at care workers. In September 2015, a Restrictive Practices Positive Behaviour Support Plan was completed. It listed the instances in which CJK had engaged in physical and aggressive behaviour. Because of this continued behaviour, the 2015 Report Plan recommended that CJK continue to see his psychiatrist, Dr Rodrigo, to monitor his health and wellbeing, and that the use of chemical restraint continue. The chemical restraint clarification letters from Dr Rodrigo prescribed Oxazepam “to manage his aggression and agitation”. On 28 September 2015, the Tribunal (differently constituted) decided to appoint the Public Guardian as guardian for restrictive practices (general) for CJK. The guardian for restrictive practices (general) was directed to provide to the Tribunal a copy of the latest Positive Behaviour Support Plan six weeks prior to the expiry of the appointment. Further, the Tribunal ordered that unless the Tribunal ordered otherwise, the appointment was to remain current for two (2) years. On 5 January 2016, the Public Guardian consented to the use of Oxazepam as a chemical restraint (fixed dose). This complied with the Positive Behaviour Support Plan dated 13 August 2015 pursuant to s 80ZE of the Guardianship and Administration Act 2000 (Qld) (the GAA). The consent was authorised on the condition that the Tribunal renewed the Public Guardian’s appointment for restrictive practices. Review of the appointment of a guardian for restrictive practices (general) The Tribunal considered whether to make another order for the appointment of a guardian for restrictive practices (general) on the date the earlier order of the Tribunal would end, based on the material held on the Tribunal’s file. In reviewing the appointment of a guardian for restrictive practices, the Tribunal must be satisfied that the appointment was necessary in accordance with the terms of s 80ZD of the Act. Section 80ZD of the GAA provides: 80ZD Appointment (1) The tribunal may, by order, appoint a guardian for a restrictive practice matter for an adult if the tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) the adult’s behaviour has previously resulted in harm to the adult or others; and (c) there is a need for a decision about the matter; and (d) without the appointment— -- 3 of 8 -- 4 (i) the adult’s behaviour is likely to cause harm to the adult or others; and (ii) the adult’s interests will not be adequately protected. (2) The appointment may be on terms considered appropriate by the tribunal. (3) The appointment has effect for the period stated in the order. (4) The period for which the appointment has effect must not be more than 2 years from the day the order is made. (5) Subsections (3) and (4) apply subject to sections 26 and 31. (6) The tribunal may make the appointment on its own initiative, or on an application under section 80ZP. (7) This section does not limit the application of chapter 3 to the appointment. Does CJK have impaired capacity for a restrict practice matter? The GAA defines capacity in Schedule 4 as: “capacity”, for a person for a matter, means the person is capable of: (a) Understanding the nature and effect of decisions about the matter; and (b) Freely and voluntarily making decisions about the matter; and (c) Communicating the decisions in some way. There is a presumption of capacity for decision making for all adults. The Tribunal has considered a number of medical reports. Dr Sarah Young, a senior psychologist, diagnosed CJK on 27 February 2015 with moderate- severe intellectual disability. She stated that CJK’s cognitive abilities appear to be consistent over time and fall in the less than first percentile. Because of CJK’s intellectual functioning, she explained that his capacity to make decisions is impaired. Dr Young assessed CJK after he presented to the Mental Health Centre at a hospital on 5 February 2015 because of his physical aggression. On 12 May 2015, Dr Hung, general practitioner, reported that CJK has a very limited ability to understand and act on information relevant for making decisions and appreciate the consequences of the decision or lack of decision about personal health care. He is reported to have no understanding as to the reasons he takes medications or the seriousness of exiting medical problems. It was further stated that he is not able to maintain a healthy lifestyle, diet, hygiene or maintain accommodation by himself and requires 24 hour care. Dr Hung reported that CJK cannot make decisions freely and voluntarily. -- 4 of 8 -- 5 The medical evidence provided to the Tribunal is unchallenged by any of the active parties. The Tribunal accepts the medical evidence of Dr Hung and Ms Young and finds that CJK has an intellectual disability which prevents him from being able to understand the nature of effect of decisions about the use of restrictive practices. The Tribunal further accepts that his intellectual disability will remain consistent over time. The Tribunal is satisfied that the presumption that all adults have capacity to make their own decisions has been rebutted for restrictive practices matters in the case of CJK by the evidence provided to the Tribunal. The Tribunal finds that CJK has impaired capacity to make decisions about the use of restrictive practices. Has CJK’s behaviour resulted in harm to himself or others? The Tribunal has the Restrictive Practice Positive Behaviour Support Plan based on an assessment made in October 2015 by Multicap. The Tribunal has directed as part of this decision that the most current Positive Behaviour Support Plan be provided to the Tribunal. The October 2015 Positive Behaviour Support Plan identified incidents of verbal aggression, property damage and physical aggression. The Public Guardian’s Restrictive Practices Report dated 1 September 2017, outlines that since CJK moved to his current accommodation he has been visited by the Community Visitor on two occasions. CJK continues to receive the fixed dose Oxazepam. Since the last visit on 26 May 2017, there had been three incidents involving CJK shouting and swearing at a co- tenant, tension between co-tenant resulting in CJK throwing clothing at a co-tenant and a third incident of shouting and swearing that he did not have enough money on an outing. It is further reported that while he is still prone to verbal outbursts, his physical behaviours have been minimal in recent times. It is reported that he has settle well into his current accommodation. Based on that evidence, the Tribunal is satisfied that CJK’s behaviour has previously resulted in harm to others. Is there a need for a decision about the matter? The Public Guardian also provided the Tribunal with a report completed on 25 August 2017. Following the changes to CJK’s service provider and accommodation in April 2017, the DCCSDS authorised the use of chemical restraint (fixed dose) for CJK under a short-term approval for Accommodation Support and Respite Services until 24 September 2017. It stated that CJK continues to be subject to restrictive practices at his accommodation. According to the documents provided to the Tribunal, the restrictive practice in place is the use of chemical restraint on a daily basis. The Tribunal has considered the guardianship report completed 25 August 2017. The Public Guardian has informed the Tribunal that with CJK’s change in accommodation, the Public Guardian consented to Multicap and Endeavour on 11 February 2017 for the use of chemical restraint (fixed -- 5 of 8 -- 6 dose) being administered in accordance with the Positive Behaviour Support Plan but subject to conditions including that in the next plan, if CJK’s medication has previously been reviewed by CJK’s treating doctor the date of the most recent medication review. The consent was given until 10 February 2018. Further the Public Guardian has advised that there are current ongoing discussions with CJK’s treating psychiatrist as to the primary purpose of the medication. The Tribunal was advised that his treating doctor was unwilling to state in writing the primary purpose of the prescription and as a result of this a second opinion is being sought. The Public Guardian’s report concludes: The current purpose of [CJK’s] medication remains unclear and at this time is still considered to be Chemical Restraint. While an STA (DCCSDS) is currently in place, this expires on 24 September 2017, and further use of the medication past this date would be considered unlawful without approval in place. AS & RS [Accommodation and Respite Services] have advised that they will submit a PSBP to the Public Guardian for consideration while medication matters are investigated further. The Public Guardian is therefore of the opinion that there is a need for a decision maker in relation to Restrictive Practice (General) matters pursuant to s 80ZD of the Guardianship and Administration Act 2000 At the current time, Oxazepam continues to be administered and it is understood it is administered for aggressive behaviour. Until such time as clarification is obtained as to the primary purpose of the prescription, the Tribunal considers that the administering of the medication should be considered a chemical restraint. The Tribunal concludes that there is a need for a decision to be made about the matter and without the appointment CJK’s behaviour is likely to cause harm to himself or others and his interests will not be adequately protected. The evidence provided in the reports of the Public Guardian and the previous Positive Behaviour Support Plan supports this conclusion. That evidence also supports a finding that CJK’s interests would not be adequately protected without an appointment. Conditional approval has been given in the past and there are further investigations being conducted in relation to the medication. The Tribunal is satisfied that the care workers providing services to CJK would not be able to use chemical restraint without consent from a guardian for restrictive practices. By appointing the Public Guardian as the guardian for restrictive practices for a further two years, the use of restrictive strategies could continue with consent of the guardian. In the event that clarification of the purpose of the medication is obtained which impacts the Tribunal’s decision, it is open for the Public Guardian to make a new application to the Tribunal. At the time of this decision, the Tribunal is satisfied that the criteria in section 80ZD of the Act have been established. The Tribunal is satisfied that the Public Guardian is experienced and skilled in decision-making about the use of restrictive practices and is appropriate -- 6 of 8 -- 7 to appoint as a guardian for restrictive practices (general) to continue for two years unless otherwise ordered by the Tribunal. The Tribunal further directs that in addition to providing the current Positive Behaviour Support Plan, the guardian for restrictive practices (general) provide a copy of any updated Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the appointment. Review of the appointment of the Public Guardian as guardian for CJK On 25 February 2015, the Tribunal appointed the Public Guardian as guardian for CJK for decisions about the following personal matters: a) Accommodation; b) With whom CJK has contact and/or visits; c) Health care; d) Provision of services. That appointment was to remain current until further order of the Tribunal and was to be reviewed in three years. The notice of the on the papers hearing notified the active parties that the Tribunal would be considering not only a review of the appointment of the Public Guardian as guardian for restrictive practices (general) but would also review the appointment of the Public Guardian as guardian for CJK. Section 31 of the GAA essentially provides that the Tribunal may conduct a review of an appointment of a guardian for an adult in the way it considers appropriate. Section 31(2) provides that at the end of the review the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. That means that the Tribunal must consider matters set out in s 12 of the GAA which provides: 12 Appointment (1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and (c) without an appointment— (i) the adult’s needs will not be adequately met; or -- 7 of 8 -- 8 (ii) the adult’s interests will not be adequately protected. (2) The appointment may be on terms considered appropriate by the tribunal. (3) The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person. (4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B. At the time of conducting the on the papers hearing, the Tribunal did not have a guardianship report from the Public Guardian. The Tribunal did not consider that it had sufficient evidence on which it could determine whether s 12(1)(b) and (c) were satisfied. The review was adjourned and directions were made to obtain further information from the Public Guardian. The order made by the Tribunal on 25 February 2015 remains in place. -- 8 of 8 --