BLS [2010] QCAT 288

CITATION: BLS [2010] QCAT 288 PARTIES: BLS APPLICATION NUMBER: GAA4020-10 GAA4022-10 MATTER TYPE: Guardianship and administration matters HEARING DATE: 22 June 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 22 June 2010 DELIVERED AT: Brisbane ORDERS MADE: Appointment of guardian continued. Appointed of guardian for restrictive practices (general) CATCHWORDS : GUARDIANSHIP - where adult manifests challenging behaviours – where chemical restraint used to manage behaviours - Guardianship and Administration Act 2000 – Section 80ZD – where guardian for restrictive practices (general) appointed – where review of appointment of guardian for all personal matters APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 6 -- REASONS FOR DECISION 1. BLS is 22 years of age and she has an intellectual impairment. She resides in a unit with 94 hours of service support each week from a support service. 2. On 1 March 2006 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for all personal matters for BLS following an application made to that Tribunal by BLS’s then service providers which asserted that BLS had been subjected to abuse by a person close to her family. In 2008 the appointment of the guardian was reviewed and continued for two years. 3. In August 2009 an application was made to that Tribunal seeking the appointment of a guardian for restrictive practices (general) as it had been identified that BLS was being administered medication to manage her challenging behaviours. On 23 October 2009 that Tribunal appointed a guardian for restrictive practices (general) for 12 months. 4. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal. 5. The appointments are being reviewed on the basis of information on the Tribunal file. The Tribunal must take into account section 31 of the Guardianship and Administration Act 2000 (the Act) which provides that the Tribunal must revoke its order making an appointment of a guardian unless it is satisfied it would make an appointment if a new application for an appointment were to be made. In reviewing the appointment of a guardian for restrictive practices the Tribunal must be satisfied of the matters set out in section 80ZD of the Act. 6. The Tribunal was provided with a report from Dr McGrouther dated 21 June 2010 who stated there was a diagnosis of intellectual impairment. BLS scored 17 out of 30 in a Mini Mental State Examination but the assessment was not complete. Dr McGrouther was of the opinion that BLS needed help with decisions about surgery and with medication as well as with making lifestyle and accommodation decisions. 7. The doctor was of the opinion that BLS displayed aggressive behaviour and could not fully understand that she was taking medication to manage that behaviour or the consequences that would occur if she did not take the medication. Dr McGrouther was of the opinion that BLS could not make any complex decisions. 8. A series of reports written from 2003 to 2006 by psychologists and mental health workers provided similar information. In particular the reports confirmed the diagnosis of intellectual impairment, cognitive deficits, a long history of aggressive behaviours and significant learning difficulties. 9. 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 -- 2 of 6 -- c) communicating the decisions in some way. 10. The Tribunal finds that BLS has an intellectual impairment and she does not understand the nature and consequences of decisions about her lifestyle and accommodation, health care and the use of restrictive practices to manage her aggressive and challenging behaviour. The Tribunal is satisfied that the presumption of capacity to make all her own decisions has been rebutted by the evidence provide to the Tribunal. 11. The Tribunal finds that BLS has impaired capacity for making decisions about personal matters and about the use of restrictive practices. 12. In the report provided to the Tribunal by the Adult Guardian it was stated that BLS had been subjected to abuse as a young person. She had been under the care of the Department of Child Safety until she was 18 years of age. The Department had limited BLS’s contact with some members of her family due to concerns about abuse and due to the challenging behaviour displayed by BLS after contact with her family had occurred. 13. The Adult Guardian had made decisions on five occasions about contact between BLS and members of her family in the period from 14 August 2008 to 7 April 2010. The Adult Guardian reported that family members and BLS’s service provider had stated that BLS would be at risk of abuse and exploitation if she did not have the support of a decision maker. 14. The Tribunal was informed by the Adult Guardian that there had been a history of contentious issues within the family before a guardian had been appointed and there was an ongoing concern held by the guardian and the service providers that without the appointment of a formal decision maker about personal matters, BLS may be subject to unsettling influence designed to remove her from her stable accommodation and support arrangements. 15. The Adult Guardian stated that BLS appears to have settled into arrangements of having limited contact with specific family members on important dates. The Adult Guardian submitted that continued monitoring of contact issues was required for the care and protection of BLS in line with her views and wishes. 16. Written information was provided to the Tribunal about BLS by certain family members. An aunt stated that she had had some limited contact with BLS as a result of decisions made by the guardian. This aunt did not comment directly on the need for a guardian but she did express a clear request to have more frequent contact with BLS. 17. Written information was also provided by a second aunt of BLS. She appeared to support the continuation of appointment of a guardian to make decisions for BLS and was aware that some history from the past would make it difficult for BLS to have all her family around her. This aunt requested consideration of contact arrangements so BLS could have an occasional telephone call with her family. 18. Written information was also provided by a third aunt of BLS. This aunt did not comment directly on the need for a guardian but she did express a clear request to have more frequent contact with BLS. -- 3 of 6 -- 19. The Tribunal accepts the evidence of the Adult Guardian and finds that BLS has in the past been subject to abuse from certain members of her family and that as a result only limited arrangements have been in place for contact between BLS and her family. The Tribunal finds that the limited contact arrangements have been made in line with the views and wishes expressed by BLS. 20. The Tribunal finds that BLS is in stable accommodation and has services provided to meet her care needs. As she is dependant on service providers for care and accommodation support it is important that a decision maker is in place to ensure that the arrangements continue to be appropriate and meet BLS’s needs. She is also reliant on support to make most decisions as she has difficulty making simple as well as complex decisions. 21. Section 12 of the Act deals with the question of need for an appointment of a guardian or administrator and provides, where relevant, as follows: (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 (ii) the adult’s interests will not be adequately protected….. 22. The Tribunal is satisfied that based on the findings made in paragraphs 19 and 20 the evidence has established a need for decisions to be made about personal matters for BLS. As BLS does not have an informal support network to provide support with decision making, the Tribunal is satisfied that the appointment of a guardian is the only way in which her needs will be adequately met. 23. None of the relatives of BLS who provided information to the Tribunal indicated a willingness to make decisions on her behalf. That position is not unexpected given the sensitivity of the family to the past history of abuse in which some family members had been involved. 24. When conducting a review of an appointment of a guardian, the Tribunal must take into account section 31 of the Act which provides that the Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment. 25. Apart from some criticism from family members that they have not had sufficient contact with BLS, there is no evidence that the current guardian, the Adult Guardian, is no longer competent to discharge the role of guardian for BLS. The Tribunal is satisfied that the contact decisions made by the Adult Guardian have been based on BLS’s expressed views -- 4 of 6 -- and wishes and have been made in her proper care and protection. No submissions have been made that another person is more appropriate to be guardian than the Adult Guardian. 26. The Tribunal is satisfied that the Adult Guardian should continue to be appointed as guardian for BLS for all personal matters for two years. The Tribunal is confident that the Adult Guardian will continue to apply the general principles and will continue to make decisions for BLS in a way consistent with her proper care and protection. 27. The Tribunal was provided with evidence that BLS has in the past engaged in behaviour such as hitting, scratching and pulling the hair of other persons which has resulted in harm. She has also engaged in behaviour which has resulted in property damage and in a serious risk of physical harm to herself or other people such as hitting, throwing or damaging objects such as television sets, DVD devices and windows. 28. BLS has been prescribed medication to manage her challenging behaviours and not for the purpose of treating a diagnosed medical condition. The use of medication in this manner constitutes chemical restraint under the Disability Services Act 2006 and the service providers who administer the medication face civil or criminal liability in view of the inability of BLS to give consent to the use of this restrictive practice to manage her behaviours. 29. However section 123ZZC of the Disability Services Act 2006 provides that there is 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 BLS on 23 October 2009. This appointment of the guardian for restrictive practices is being reviewed at this time. 30. The guardian for restrictive practices has not yet given consent to the use of chemical restraint as a positive behaviour support plan has not been finalised under section 123L of the Disability Services Act 2006. The Adult Guardian has informed the Tribunal that a draft plan has been submitted for consideration. 31. The Tribunal is satisfied that the evidence establishes that BLS’s behaviours are likely to cause ongoing harm consistent with the harm that has been caused in the past. The Tribunal is satisfied that BLS’s interests would not be adequately protected unless both positive and restrictive strategies are used to manage her behaviour. 32. The Tribunal is satisfied that without the appointment of a guardian for restrictive practices, the service providers would not administer medication prescribed to manage BLS’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 regularly reviewed and monitored to ensure that the least restrictive methods are used and that efforts are in place to improve BLS’s quality of life. 33. The Tribunal is satisfied that the criteria in section 80ZD of the Act have been established as discussed in the findings in paragraphs 31 and 32. -- 5 of 6 -- 34. The Adult Guardian is experienced and skilled in decision making about the use of restrictive practices and is appropriate to appoint as a guardian for restrictive practices (general) for 12 months. The guardian for restrictive practices is directed to provide a copy of the positive behaviour support plan and clinical assessments to the Tribunal within one month of consenting to the use of the restrictive practice. -- 6 of 6 --