BDP [2017] QCAT 342

CITATION: BDP [2017] QCAT 342 PARTIES: BDP APPLICATION NUMBER: GAA3173-17, GAA3174-17, GAA3175-17, GAA3834-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 24 April 2017 HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 28 September 2017 DELIVERED AT: Brisbane ORDERS MADE: GUARDIANSHIP 1. The guardianship order made by the Tribunal on 22 May 2015 is changed by appointing the Public Guardian as guardian for BDP for the following personal matters: (a) Health care; (b) Provision of services; (c) Seeking help for, or making representations for BDP about the use of restrictive practices. 2. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. RESTRICTIVE PRACTICES 3. The Tribunal approves Townsville Independence Program for Adult Community Living (TIPACL) (a) secluding, (b) chemically restraining, (c) restricting access BDP to objects; -- 1 of 10 -- 2 in accordance with the Positive Behaviour Support Plan dated 24 April 2017 subject to any changes notified by the Chief Executive, Department of Communities, Child Safety and Disability Services. 4. Unless the Tribunal orders otherwise, this approval remains current for six (6) months. 5. This order is made subject to the following conditions: (a) The Department of Community, Child Safety and Disability Services and the Public Guardian are directed to have BDP reviewed in particular in regard to his medications by the Specialist Disability Service Assessment and Outreach Team on or before 28 August 2017, with a copy of any report to be submitted to the Tribunal within 14 days of it becoming available. (b) The Department of Community, Child Safety and Disability Services must ensure the Positive Behaviour Support Plan the next Positive Behaviour Support Plan filed in the Tribunal in respect of BDP is fully compliant with s148 and s150 of the Disability Services Act 2006. (c) The Department of Community, Child safety and Disability Services must file in the Tribunal a document including all information required by s80W of the Guardianship and Administration act 2000 which is not contained within the next Positive behaviour Support Plan not more than 14 days before the next hearing. CATCHWORDS: GUARDIANS, COMMITTES, ADMINISTRATORS, MANAGERS AND RECEIVERES – APPOINTMENT – where an adult resides in accommodation supported by a service provider – where service provider proposes to use restrictive practices including -- 2 of 10 -- 3 seclusion in accordance with a positive behaviour support plan – where use of seclusion and other restrictive practices requires approval of tribunal – whether adult has impaired capacity for decisions about restrictive practices – whether adult has exhibited behaviours of harm – whether use of restrictive practices in accordance with plan least restrictive and the risk of harm will be reduced or eliminated and the adult’s quality of life will be improved – where application for appointment of guardian – whether adult has impaired capacity for personal decisions – whether personal decisions required necessitating a formal appointment of a guardian Disability Services Act 2000 (Qld), s144, s 145, s 148, s 150 Guardianship and Administration Act 2000 (Qld), s 12, s 31, s 80V, s 80W, s 80X and s 80Y APPEARANCES AND REPRESENTATION: Mr Robertson, legal officer, represented the Department of Communities, Disability Services. Ms Sullivan appeared for the Public Guardian. Ms Hughes, clinician, Mr Cullen, service provider and Mr Harris, Public Guardian, attended the hearing. REASONS FOR DECISION Introduction [1] BDP is 49 years old and resides in accommodation supported by Townsville Independence Program for Adult Community Living (TIPACL). BDP has an intellectual disability and an acquired brain injury as a result of near drowning when he was three years old. TIPACL carers, in providing BPD with support, use what have been defined as restrictive practices.1 The use by TIPACL of those restrictive practices requires approval of the Tribunal because one of the restrictive practices is seclusion2 and only the Tribunal 1 Disability Services Act 2006 (Qld) (DS Act), s144. 2 DS Act, s144. -- 3 of 10 -- 4 can approve the use of seclusion in accordance with a positive behaviour support plan.3 [2] There are other restrictive practices currently used by TIPACL which require approval, including chemical restraint and restricted access to objects. The Tribunal may approve the use of these other restrictive practices when it is approving the use of seclusion.4 If the Tribunal does not approve the use of the restrictive practices then the service provider will not be authorised to use them in respect of BDP and will need to deal with any behaviours of harm without resorting to restrictive practices. [3] The Tribunal notes that when restrictive practices for BDP were last before the Tribunal, an approval was given for containment5 as well as seclusion with other restrictive practices for 6 months. As a result of NDIS funding enabling BDP to have one-on-one support 24/7, including a passive sleepover in his unit, the need for containment was removed. [4] The Public Guardian was appointed guardian on 2 May 2015 for health care for seeking help or making representations for BPD about the use of RPs on 22 May 2015 for 5 years. The service provider made an application for a guardian for service provision, received 3 April 2017, and that application was also dealt with at the hearing. [5] BDP has been subject to restrictive practices for many years and it is noted that the need to use them, in particular seclusion, has been reduced over the years. This is a credit to both those who have assessed him and authored his Positive Behaviour Support Plan (PBSP) and to his carers. [6] BDP is subject to a forensic order under the Mental Health Act 2016 (Qld), as a result of charges of assault of a prison officer while he was in jail following a conviction for sexual assault (Forensic Order). The terms of the Forensic Order include that BDP is to reside at an authorised address supported by an authorised service provider, that community access is to be supervised by a responsible adult approved by treating psychiatrist, and that he must comply with all appointments for follow up and prescribed treatment. The prescribed treatment includes the medications which are subject to Tribunal approval for chemical restraint. Legislation [7] The Tribunal is being asked to approve the continued use of seclusion for BDP, which is a very serious restrictive practice as it means that BDP may be confined at any time of the day or night in an area from which free exit is prevented.6 The Tribunal may approve seclusion in accordance with s 3 Guardianship and Administration Act 2000 (Qld) (GA Act), s 80V; DS Act, s 150. 4 GA Act, s 80X. 5 DS Act, s 146. 6 DS Act, s 144. -- 4 of 10 -- 5 80V of the GA Act having regard to the matters set out in s 80W of the GA Act. The Tribunal needs to be satisfied that:7 a) BDP has impaired capacity for decisions about the use of restrictive practices in relation to him; b) there is a need to seclude BDP because: i) his behaviour has previously resulted in harm to himself or others; and ii) there is a reasonable likelihood that if the approval is not given, his behaviour will cause harm to him or others; and c) a PBSP has been developed which provides for the seclusion; d) secluding BDP in compliance with the approval is the least restrictive way of ensuring safety of BDP and others; e) BDP has been adequately assessed by appropriately qualified persons in the development of the PBSP; f) if the PBSP is implemented: i) the risk of BDP’s behaviour causing harm will be reduced or eliminated; and ii) BDP’s quality of life will be improved in the long term; and g) the observations and monitoring provided for under the PBSP for BDP are appropriate. [8] The matters which must be considered under s 80W are: a) the suitability of the environment in which BDP will be contained or secluded; b) the terms of the Forensic Order; c) the views of the authorised psychiatrist about the containment or seclusion of BDP; d) any strategies, including restrictive practices previously used to manage or reduce the behaviour of BDP that causes harm to him or others and the effectiveness of those strategies; and e) the types of disability services provided to BDP. 7 GA Act, s 80V. -- 5 of 10 -- 6 [9] The Tribunal may also consider the matters set out in s 80W(2) of the GA Act in regard to seclusion. [10] The Tribunal may make an order approving the use of seclusion for a maximum period of 12 months.8 [11] The Tribunal may consider the approval of other restrictive practices under s 80X of the GA Act when the Tribunal proposes to approve the use of seclusion under s 80V of the Act. The Tribunal must consider the matters under s 80V in respect of the approval of the other restrictive practice. In particular, if the other restrictive practice is chemical restraint, then the Tribunal must consider the views of the treating doctor about the use of chemical restraint. [12] An application has also been made for the Tribunal to review the appointment of the Public Guardian as guardian for BDP to enlarge the order so that it covers service provision for BDP having regard to him now being a subject to the NDIS. The Tribunal reviews the appointment of a guardian in accordance with s 31 and s 12 of the GA Act and must be satisfied that: a) BDP has impaired capacity for personal matters; b) there is a need for decisions in regard to particular personal matters; and c) without appointment, his needs will not be adequately met or his interests will not be adequately protected. [13] There is no other party seeking appointment as guardian so, if there is a need for appointment, the Public Guardian appointment will be continued for the matters requiring appointment. Capacity [14] It is fundamental that before the Tribunal may make any approval or appoint a decision maker, it must be satisfied that the adult has impaired capacity in respect of the matter under consideration. The reports before the Tribunal confirm that BDP has an intellectual disability and an acquired brain injury, which have resulted in him having significant cognitive deficits. He has some understanding of the matters under consideration and would be able to express his views, which must be taken into account in any decision making. His cognitive deficits mean that he has impaired capacity to make complex decisions about all of the matters under consideration here. Seclusion [15] The PBSP and containment and seclusion report show that the need for the use of seclusion for BDP has reduced dramatically over the last several 8 GA Act, s 80Y. -- 6 of 10 -- 7 years, as one would expect following appropriate assessments and the use of positive strategies and other reactive strategies to reduce the need for the restrictive practice in accordance with the PBSP. The containment and seclusion report provided to the Tribunal showed that seclusion had been required on only four occasion between March 2016 and February 2017 and that there had been no need for seclusion since the increase in service provision as a result of the NDIS. It is noted that the previous PBSP dated June 2016 had a maximum period and frequency of seclusion of 45 minutes and two times per day. [16] It was originally proposed that seclusion be used for a maximum period of 20 minutes once per day. Following representations from the Public Guardian, the final PBSP put before the Tribunal showed a reduction in the maximum period and frequency of seclusion to 20 minutes and once per month. [17] The Public Guardian considered that the current PBSP did not contain appropriate multidisciplinary assessments in relation to BDP, as required under the GA Act. While some of the assessments were performed some years ago, it is clear that BDP has been properly assessed. In particular, the functional behaviour assessment in the PBSP shows that BDP has a history of outburst behaviour which has previously caused harm to others and which commences as verbal threats and may progress to physical aggression. A careful analysis is given as to the likely function of the outburst behaviour and the trigger events. The last major behaviour causing harm would appear to have been in 2014, when BDP assaulted a carer, resulting in BDP being admitted to hospital under his Forensic Order. [18] The PBSP also has strategies to proactively support BDP, in particular circumstances such as situations like making outside calls for BDP which have in the past exacerbated his behaviour. The major purpose of his behaviour is said to be to avoid staff interaction. A large part of the PBSP is devoted to a replacement behaviour of BDP asking his carers to leave when he feels the need. It is hoped that this strategy will further reduce the need for such things as seclusion. [19] The PBSP sets out strategies to be used prior to seclusion and the circumstances in which it is used. It is stated that seclusion is only to be used as a reactive strategy of last resort where BDP is engaging in behaviour that can cause physical or there is a serious risk of harm. During the use of seclusion, BDP has access to the whole of his unit and his carers subtly monitor him until he has shown appropriate signs of de-escalation. There is a protocol for the reporting of incidents where seclusion is used. It is stated that positively BDP will be safe in his unit during seclusion and that negatively he will have reduced access to his carers and community access. [20] BDP’s treating psychiatrist did not provide a view about seclusion but as mentioned, the Forensic Order mandates that BDP is not to access the community unless accompanied by an approved person and, if for any -- 7 of 10 -- 8 reason BDP is not being supervised by his carers, then potentially he could become in breach of the Forensic Order. [21] The PBSP for BDP shows a thorough understanding of him and that a great deal of time has gone into understanding what things trigger his behaviours and providing ways of ensuring that his needs can be met without exacerbating him. Hence, the reduction in behaviours requiring the use of seclusion. Therefore, the PBSP serves the purpose of reduction or elimination of behaviours of harm and the tools that it gives BDP to meet his needs will improve his quality of life. [22] I am satisfied that the use of seclusion in accordance with the PBSP complies with the requirements of s 80V and s 80W of the GA Act and I approve its use in accordance with the PBSP. Chemical restraint [23] Chemical restraint is the use of medication for the primary purpose of controlling an adult’s behaviour in response to the adult’s behaviour that causes harm to the adult or others.9 BDP is prescribed medication by his treating psychiatrist, appointed under the Forensic Order and in accordance with that order. There are four medications prescribed: Citalopram (anti- depressant); Sodium Valproate (anti-convulsant); Chlopromazine (anti- psychotic) and Cyproterone (hormanal antineoplastic agent). Cyproterone is commonly known as Androcur. [24] A clinical report prepared by the treating psychiatrist for the purpose of a review of the Forensic Order indicates the use of Androcur commenced in 2005 when BDP was placed on the Forensic Order to curb his sexual inappropriateness. BDP has exhibited behaviours of harm when he is in contact with females. This ranges from inappropriate requests for personal information to requesting physical contact and, at its worst, results in sexual assault. The treating psychiatrist in an email dated 27 March 2017 stated that he had been involved with BDP since February 2016, that the medication was prescribed by his previous doctors, that he has not made any major changes and that only after a longer length of time observing his stability would he venture to make any drastic changes to his medication. [25] The Public Guardian advocated that the use of Androcur should not be approved because it was not the least restrictive option and this was supported both by the service provider, TIPACL, and the treating team. The Public Guardian says there is a lack of behaviours of harm outlined in the PBSP which would justify the need for Androcur. The Public Guardain also considers that as BDP does not have a mental illness he cannot be compelled to take the medication under the Forensic Order and it is only with the approval of the Tribunal that the service provider can dispense the medication to BDP. The Department’s view at the hearing was that if Androcur continued to be prescribed by the treating psychiatrist and if it was 9 DS Act, s 145. -- 8 of 10 -- 9 not approved by the Tribunal, the Department of Health would make alternative arrangements. [26] It is clear from the material that BDP has previously engaged in behaviour which has caused harm to others of a sexual nature and that the use of Androcur was mandated to deal with that behaviour. [27] The PBSP shows that a large amount of effort has gone into ensuring that BDP has a better understanding of boundaries around appropriate behaviour with females and there are strategies in place to support him in the community so that he does not engage in those behaviours. It is noted in the PBSP and the report that while Androcur deals with the physical urge, it does not inhibit the thoughts associated with the act, evidenced by BDP continuing to fixate on females, and that staff supports in the community significantly reduce the risk of harm to others. The PBSP states that it is difficult to measure the clinical efficacy of Androcur and that he is currently diagnosed with diabetes and is obese which are side effects of the medication. [28] The Public Guardian state that it is BDP’s view that Androcur should not be continued. [29] The use of other medication is noted in the PBSP to be associated with a decrease in inappropriate verbal and physical behaviours. [30] There is clear evidence that BDP has previously engaged in very serious behaviours of harm in regard to women. The function of that behaviour is well described in the PBSP. There are appropriate strategies to assist him to deal with the triggers for those behaviours outlined in the PBSP, which could form the least restrictive option, in which case the use of Androcur in particular should be considered for discontinuance. The treating psychiatrist has indicated that would require further observation. [31] The effect of a sudden withdrawal of Androcur is not known and if it is to occur it must be supervised to ensure that it is done appropriately and so that the effect on BDP’s behaviour can be properly monitored. Therefore, I am not minded to revoke the approval for the use of Androcur or the other forms of chemical restraint. I will though approve their use with other restrictive practices under a short-term order. The Department and the Public Guardian have agreed to have BDP reviewed by the Specialist Disability Service Assessment and Outreach Team in regard to his medication and there will be a direction in that regard. [32] It is anticipated that a process will be developed for BDP to have a stage reduction in his medication with the aim of it being withdrawn, on the basis that it is no longer the least restrictive option for him. This will also require the co-operation of BDP’s treating psychiatrist so that he can be satisfied that the use of Androcur is no longer required under the Forensic Order. -- 9 of 10 -- 10 Restricted access to objects [33] BDP has restricted access to bulk food items which are stored in locked areas of the second bedroom of his unit which is used by his service provider. It is noted that he has access to daily food items kept in the refrigerator and cupboards in his kitchen. There is a concern expressed in the PBSP and report that BDP has difficulty maintaining a healthy diet and displays impulsive behaviour, which has previously resulted in the ingestion off inappropriate amounts of food. Of particular concern is that he has difficulty with good food decisions in relation to his diagnosis of type II diabetes. [34] The Public Guardian do not consider that there has been adequate material provided in regard to behaviours of harm and that a less restrictive option would be the storage of bulk food items off site. [35] The Department indicated at the hearing that they could put in further material about the need for restricted access. [36] The connection between diet and the risks of diabetes is clear. There is, however, only assertions about behaviours of concern in this regard. Positive strategies in regard to educating BDP about good food choice and much greater detail about the need for restricted access and the other requirements for an approval are expected, as well as what BDP’s views are in regard to the restricting of his access to bulk food. Approval for restricted access will be given in the short-term on the basis that the requirements of the GA Act will be properly articulated at the next hearing. Guardianship [37] The Public Guardian is currently appointed as guardian for BDP for decisions about health care and seeking help for, or making representations about, the use of restrictive practices. There is a request that the Public Guardian also be appointed for the provision of services. This is as a result of the NDIS implementation process. The Public Guardian has been a strong advocate fro BDP in regard to restrictive practices and this involves liaising with his health care providers so there is clear need for appointment in those areas. [38] As mentioned, BDP has been able to receive an increase in his service support under the NDIS and it was made clear at the hearing that the Public Guardians delegate had informally assisted in this process. The question, then, is are there any further decisions to be made in regard to service provision which would require the appointment of a guardian. The Department made it clear at the hearing that there were further complex decisions in regard to service provision as a result of the NDIS and that there would be a conflict of interest unless a decision maker was appointed. On that basis, the Public Guardian’s representative was happy to accept appointment for service provision as well as the current areas of appointment. That appointment will be for one year. -- 10 of 10 --