BJ [2011] QCAT 18

CITATION: BJ [2011] QCAT 18 PARTIES: BJ APPLICATION NUMBER: GAA10304-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 12 January 2011 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 12 January 2011 DELIVERED AT: Brisbane ORDERS MADE: Appointment of the Adult Guardian as guardian for restrictive practices general CATCHWORDS : GUARDIANSHIP FOR RESTRICTIVE PRACTICES – challenging behaviour – medication being administered to manage behaviour - Guardianship and Administration Act 2000 – Section 80ZD – where guardian for restrictive practices (general) appointed APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 4 -- REASONS FOR DECISION 1. On 14 December 2009 the tribunal appointed the Adult Guardian as the guardian for restrictive practices general for BJ for a period of 12 months. 2. On 30 September 2010 the Adult Guardian consented to the use of chemical restraint by service providers to BJ subject to specified conditions that related to further information being provided in the Positive Behaviour Support Plan developed for BJ. 3. In a report to the tribunal dated 29 November 2010 the Adult Guardian confirmed that BJ was being administered Risperidone for the purpose of managing his challenging behaviours. The use of the medication constituted chemical restraint and consent to its use was granted to 25 January 2011. 4. After that date, ongoing use of chemical restraint would not be subject to consent and the Adult Guardian recommended that the appointment of a guardian for restrictive practices was continued. This recommendation was supported by the service providers who provide 24 hour residential support to BJ. 5. In considering the appointment of a guardian for restrictive practices the tribunal must be satisfied of the matters set out in section 80ZD of the Guardianship and Administration Act 2000 (the Act). 6. The tribunal was provided with a report from Dr Michael Dwyer, psychiatrist, dated 24 September 2009 who stated that BJ has moderately severe intellectual disability secondary to Down’s syndrome. He reported that BJ has displayed behavioural disturbance since childhood and he has resided in supported accommodation since he was 14 years old. Dr Dwyer reported that the administration of Risperidone has produced a very significant improvement in BJ’s behaviour and that the medication was prescribed for disruptive and aggressive behaviour and not as treatment for a medical condition. 7. A report had been provided to the tribunal by Dr Mark Dutney dated 3 August 2009 who is BJ’s general medical practitioner. Dr Dutney noted that BJ has a low IQ, he could not make decisions freely and voluntarily and he had no understanding of information on which to make decisions about the use of restrictive practices. 8. The Act defines capacity 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. 9. The tribunal accepts the evidence from Dr Dwyer and Dr Dutney. The tribunal finds that BJ has a moderate to severe intellectual impairment and he does not understand the nature and consequences of decisions about the use of restrictive practices to manage his aggressive and challenging behaviour. The tribunal is satisfied that the presumption of capacity to make decisions about the use of restrictive practices has been rebutted by -- 2 of 4 -- the evidence provide to the tribunal. The tribunal finds that BJ has impaired capacity for making decisions about the use of restrictive practices. 10. The tribunal was provided with evidence that BJ has in the past engaged in behaviour such as hitting, scratching, kicking and throwing objects at other people which has resulted in harm or a serious risk of harm. BJ has been prescribed medication to manage his challenging behaviours. The use of medication in this manner constitutes chemical restraint under the Disability Services Act 2006 and the service providers who administer the medication would face civil or criminal liability if relevant consent was not given to the use of this restrictive practice to manage his behaviours. 11. Section 123ZZC of the Disability Services Act 2006 provides immunity from liability if the restrictive practice is used in compliance with a positive behaviour support plan and with the consent of a relevant decision maker under that Act. The tribunal had appointed the Adult Guardian as the guardian for restrictive practices for BJ for 12 months on 14 December 2009 and consent under the Disability Services Act 2006 has been given until 25 January 2011. Continued use of the medication after that date requires fresh consent from a guardian for restrictive practices. 12. The tribunal can appoint a guardian for restrictive practices if it is satisfied of the criteria set out in section 80ZD of the Guardianship and Administration Act 2000. The tribunal notes from the positive behaviour support plan (the plan) that the incidence of outburst behaviour causing harm by BJ has decreased since 2007. There had been no recorded harm caused by his behaviour in 2010 but this appears to have been the result of support staff successfully managing the behaviour. The plan noted that BJ does display some level of outburst behaviour on almost a daily basis. 13. The tribunal notes the evidence of Dr Dwyer that the use of chemical restraint has resulted in a very significant improvement in BJ’s behaviour. In addition positive strategies devised in the plan are designed to reduce the incidence of outburst behaviour resulting in harm. By reducing the incidence of behaviour which could result in harm, BJ is able to participate in community activities. According to the plan, he spends part of six days each week in some community outing or activity. 14. The tribunal is satisfied that the evidence establishes that BJ’s behaviours have caused harm in the past and are likely to cause ongoing harm consistent with the harm that has been caused in the past unless the positive and restrictive strategies developed in the plan are available to manage his behaviour. The tribunal is satisfied that BJ’s interests would not be adequately protected without the ongoing use of chemical restraint as the management of his outburst behaviour enables increased access to the community and removes the need for strategies to confine him at his residence. 15. The Tribunal is satisfied that without the appointment of a guardian for restrictive practices, the service providers would not be able to administer medication prescribed to manage BJ’s behaviours due to liability concerns. By appointing a guardian for restrictive practices for a further 12 months the use of positive and restrictive strategies could continue with the consent of that guardian under a positive behaviour support plan that is -- 3 of 4 -- regularly reviewed and monitored to ensure that the least restrictive methods are used and that efforts are in place to improve BJ’s quality of life. 16. The Tribunal is satisfied that the criteria in section 80ZD of the Act have been established. 17. The Adult Guardian is a skilled guardian experienced in decision making about the use of restrictive practices and is appropriate to appoint as a guardian for restrictive practices (general) for 12 months. 18. Although the Adult Guardian had consented to the use of chemical restraint in compliance with the positive behaviour support plan, that consent was conditional on further information being provided to supplement the current plan. In the expectation that an amended plan will be provided to the Adult Guardian by the service providers, it is appropriate for the tribunal to direct that the guardian for restrictive practices is to provide a copy of the updated positive behaviour support plan to the tribunal within one month of consenting to the use of the restrictive practice under that updated plan. -- 4 of 4 --