BPVV [2012] QCAT 525

CITATION: BPVV [2012] QCAT 525 PARTIES: BPVV APPLICATION NUMBER: GAA3740-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 23 August 2012 DELIVERED AT: Brisbane ORDERS MADE: The withdrawal of the application for the appointment of a guardian for restrictive practices (general) has been approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: GUARDIANSHIP – where harmful behaviour – whether response to behaviour constitutes mechanical restraint – where device used to enable safe transportation – early end to proceedings Disability Services Act 2006, s 123H(1) and (2) Queensland Civil and Administrative Tribunal Act 2009, s 46 MK [2012] QCAT 232 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] BPVV has an intellectual impairment. He resides in the community with support from the Department of Communities, Child Safety and Disability Services. An application was made to QCAT seeking the appointment of -- 1 of 3 -- 2 a guardian for restrictive practices as the service provider giving accommodation and care support to BPVV wanted to implement certain strategies to respond to his behaviour which had caused harm to himself and others in the past. [2] QCAT was told by the applicant that BPVV can at times become agitated and raise his voice, use inappropriate language and spit at other people. BPVV uses a motorised wheelchair for mobility purposes. At times when at home he has used the controls on his wheelchair to cause his chair to repeatedly collide with objects and at times he had driven his chair with force into staff members, walls and doors of a motor vehicle. [3] This action has in the past resulted in BPVV breaking his toes and his left leg. Staff members have been injured by his actions. BPVV has also driven his wheelchair across a busy road in front of his house when his carers were requesting him to stop. Drivers using the road at that time had to slam on the brakes of their cars to avoid colliding with BPVV. [4] The care provider at BPVV’s accommodation developed a response to this harmful behaviour. If BPVV cannot be calmed by verbal requests, the care staff members will move away from him to give him some time and space to self calm. On those occasions when BPVV grabs at the wheelchair controls after the staff members resume engagement with him, and when he attempts to cause harm by colliding with objects or into persons, the power to his wheelchair is to be switched off via a remote control device. [5] This strategy immobilises the wheelchair and prevents BPVV causing harm to himself or others. After the wheelchair is immobilised, staff members will give BPVV time to calm down and when his mood is calm, the wheelchair will be re-activated and BPVV will be invited to engage in an activity of his choice. [6] The accommodation and care provider considered that the use of the device to immobilise the wheelchair in the circumstances described amounted to the use of mechanical restraint as defined in the Disability Services Act 2006 (DS Act). If that was correct, the service provider could only implement this strategy to respond to BPVV’s behaviour if consent were to be given by a guardian for restrictive practices appointed by QCAT in accordance with a Positive Behaviour Support Plan. [7] Mechanical restraint used against an adult with an intellectual or cognitive disability as a restrictive practice is defined in the DS Act as a device to restrict the free movement of an adult or a device to prevent or reduce self-injurious behaviour.1 The use of the remote control to immobilise BPVV’s wheelchair would have the effect of restricting his free movement and would prevent or reduce self-injurious behaviour. 1 Section 123H(1) of the Disability Services Act 2006. -- 2 of 3 -- 3 [8] Subsection 2 of section 123H of the DS Act removes certain specific instances of action from the statutory definition of mechanical restraint. One such action which does not constitute mechanical restraint is the use of a device to enable the safe transportation of an adult. The issue in point in this application regarding BPVV is whether the use of the remote control device to immobilise his wheelchair amounts to enabling safe transportation for BPVV. [9] QCAT has in an earlier case had to consider whether the use of a wheelchair involves transportation in terms of subsection 2 of section 123H of the DS Act. In MK2 the tribunal member considered the dictionary definition of the word “transportation” as being a means or system of transporting. Transport was defined as to carry or cause to go from one place to another especially over some distance. [10] The learned member in that case determined that the use of a wheelchair was to provide transport for the adult to go from place to place due to her mobility issues. He determined that the wheelchair was not used merely as a seat for the adult. I agree with the approach used in MK and with the findings made by the member. [11] It is quite apparent that BPVV is not using his wheelchair for merely sitting or positional purposes. He is using the wheelchair as a mobility aide to enable him to go from one place to another, both inside his home or outside his home. The use of the wheelchair is for transportation purposes. [12] The use of the remote control device to cut power from the motorised wheelchair and to cause it to be immobilised is in my view designed to enable the safe transportation of BPVV. It would an inherently unsafe means of transportation to use a wheelchair to collide with other people or with objects. By preventing the unsafe use of BPVV’s means of transportation, the service provider is enabling the safe transportation of BPVV. [13] I was satisfied that in this case the use of the remote control device did not constitute mechanical restraint in terms of the DS Act. On that basis, there was no need established for the appointment of a guardian for restrictive practices to give consent to the use of mechanical restraint in the circumstances outlined in the application. [14] The applicant had informed QCAT’s registry on 21 August 2012 that she would withdraw her application if the tribunal concluded that the use of the remote control did not amount to mechanical restraint used in the case of BPVV. In view of the finding that the application did not establish the use of mechanical restraint, I gave leave to the applicant under section 46 of the QCAT Act to withdraw her application so that an early end to the proceedings was achieved. 2 MK [2012] QCAT 232. -- 3 of 3 --