BCI (Restrictive Intervention) - [2016] TASGAB 8

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

BCI (Restrictive Intervention) [2016] TASGAB 8 – Application for approval to carry out a restrictive intervention

REASONS FOR DECISION

Colin McKenzie (Deputy President)
Sandra Taglieri Member
Carolyn Wallace Member

Date of hearings: 22 April 2016

Restrictive interventions – least restrictive alternative – medical risk of infection

Disability Services Act 2011 s. 4, 34, 42
Guardianship and Administration Act 1995 s. 6, 43

Background

The applicant, which is a disability service provider within the meaning of the Disability Services Act made an application with respect to BCI for approval of a restrictive intervention comprising the use of a body suit to prevent behaviour including, anal picking, smearing faecal matter then placing his fingers into his mouth.

BCI is a 31 year old who has intellectual disability, cerebral palsy, autism and epilepsy resulting in him having incapacity for giving consent to carry out the restrictive intervention.

The hearing on 22 April 2016

The application was listed for hearing at on 22 April 2016. The following persons attended:
·BCI – represented person/applicant for review
·BI – representing the applicant
·TI – BCI’s father
·SI – BCI’s mother
·STI – BCI’s sister
·Mathew Pearce BCI’s -support worker
·Wendy Wolf – Occupational therapist employed by DHHS in the disability Assessment and Advisory team.
·Shelley Beverley– representing the Senior Practitioner
·TD – a legal practitioner

Consultation

Section 42 (3)(a) of the Disability Services Act requires the Board to consult with BCI or a person nominated by him. In order to comply with that requirement the Board initially appointed a legal practitioner employed by the Legal Aid Commission of Tasmania to assist the Board pursuant to section 10 of the Guardianship and Administration Act.
The legal practitioner investigated BCI’s circumstances for that purpose in preparation for the hearing. Immediately before the hearing the Board determined that the preferable means for satisfying the requirement of the section is provided by section 4(4)(b) which states relevantly:
A reference in this Act to a person nominated by a person with a disability …
(b) includes a reference to a guardian or trustee of the person with disability or a person who is an administrator, within the meaning of the Guardianship and Administration Act 1995 in relation to the person with a disability.
There was no guardian or administrator or trustee at this point in the proceeding.
Section 42(7)(b) empowers the Board when hearing an application under section 41 to appoint a guardian. After hearing the parties and participants to the application for approval of the restrictive intervention and there being no objection, the legal practitioner was appointed by order in the following terms:
Upon the Board’s own motion in respect of BCI (hereinafter called the ‘represented person’)
The Board was satisfied that the represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of his person and circumstances; and
is in need of a limited guardian;
THE BOARD ORDERS
That TD be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited solely to acting as the person nominated for the purpose of s42 (3) (a) and s4 (4) (b) of the Disability Services Act 2011 for the duration of the hearing of the application for Approval of Restrictive Interventions.
That the order remains in effect until the conclusion of the hearing of the Application for Approval of Restrictive Intervention.
The Board then proceeded to hear the substantive application for approval of the restrictive intervention.

Therapeutic purpose

Section 4 of the Disability Services Act relevantly defines a restrictive intervention as:
…any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person but does not include such an action that is –
taken for therapeutic purposes…
Section 34 of the Act states:
personal restriction, in relation to a person with disability, means a restrictive intervention in relation to the person that consists wholly or partially of –
(a) physical contact with the person so as to enable the behavioural control of the person; or
(b) the taking of an action that restricts the liberty of movement of the person.
The intervention for which approval was sought was a personal restriction within the meaning of section 34.
The definition of therapeutic purposes was discussed in NHI (Restrictive Intervention) [2015] TASGAB 1. At paragraph [10] the Board held that the word therapeutic connotes:
A connection with expert medical or scientific opinion and the propensity to cure or alleviate a disease.
…
In law, it appears that there needs to be a connection to medical opinion or medical outcomes.
And at paragraph [15];
It is the view of the Board that “therapeutic purposes” within the Disability Services Act 2011 relates to (a) preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons, or (b) influencing, inhibiting or modifying a physiological process in persons; or medical treatment of a disorder, disease or ailment. In the context of physical structures, an obvious example of “therapeutic purposes” might include the application of a cast or frame for fractured bones or temporary physical restraints that promote healing of wounds after surgery.
This Board sees no reason in this case to depart from that interpretation of therapeutic purposes.
Evidence was received by the Board from a representative of the senior practitioner under the Act and the Board had a report from the senior practitioner, and a report from the legal practitioner about her visit to the home and investigations and conclusions about the need for the suits. She gave evidence that use of the suits did not appear to be upsetting to BCI and she confirmed the absence of an alternative that is less restrictive. The Board also took into account evidence from the parents and staff of the disability service provider.
The senior practitioner’s representative’s recommendation was that the existing restrictive intervention regime should continue. That regime was occurring under an order by the Board dated 25 January 2016 which, by virtue of section 44 (3), expired after 90 days.
The senior practitioner acknowledged that the behaviour entailed a medical risk of infection not only to BCI but also the health or well being of other persons in direct contact with BCI. The Senior Practitioner’s statement of 23 December 2015 says,
“Clearly this is a behaviour of concern because of the medical risk it poses, as well as the potential exclusion from services community activities or due[to] aversive responses form individuals.”
Also Dr Neuberger wrote a report noting the presence of health risks and that;
“oral contamination was distinctly l possible”.
The senior practitioner did not recommend any immediate change to the regime approved by the order and in use by the disability services provider. Essentially the senior practitioner’s recommendation and the evidence from her representative was to carry out a functional assessment to gather evidence in an effort to identify whether a specific remediable cause could be identified for BCI’s behaviour. The functional assessment was in the nature of a behavioural assessment to be conducted over a trial period and recording evidence of bowel function, reaction behaviour, distractive and remedial actions and the effect of those to determine if an alternative to the suits, or less restrictive use of them was viable.
Such matters are rendered relevant under section 43(1)(a). There was no evidence of any practical, alternative, reasonably suitable and able to be used in place of a body suit.
The Board notes that it is part of BCI’s current regime to have “suit-free” time when he is able to be closely supervised. Close supervision is only possible when the relevant staff or carer ratio is adequate. There was no evidence to suggest that the disability services provider or other carers were failing to provide a reasonable level of resources to enable suit-free time.
In the circumstances the Board found on the available evidence that the existing regime of use of a body suit, of which there were two versions, was appropriate. Further, the use of the body suits is necessary and reasonable to avoid or prevent infection to BCI and those caring for him. No other practical alternative was identified as currently available for use with BCI. As such, the Board was satisfied the body suits were and are used for therapeutic purposes and therefore was an action specifically excluded from the definition of restrictive intervention. The Board concluded that approval was therefore not required under the Act.
The Board observed that it would be necessary for the disability services provider to continuously and closely monitor BCI to ensure that its actions remain within the definition of therapeutic purposes or are undertaken with lawful approval under the Act. This will no doubt require their constant attention the matters set out in section 43 (2) and to the principles set out in section 5 (2) of the Disability Services Act. Compliance with those provisions will require regular review, assessment and obtaining appropriate expert advice. In fact withholding approval does more to promote BCI’s freedom from personal restraint and participation in community activity than an unnecessary approval.
The Board did not consider it appropriate to make an order for the possibility that the functional assessment proposed by the senior practitioner may reveal an alternative means of addressing BCI’s behaviour. There was no suggestion that the disability services provider or anyone else having care of BCI would not respond appropriately if an alternative is identified. However, on the evidence currently available that is a hypothetical question which it would not be appropriate for the Board to attempt to resolve.
The senior practitioner has adequate powers to enable access and investigation to carry out a functional assessment without the need for an order from the Board or direction to facilitate that process and the senior practitioner’s representative made no submission to the contrary.
Accordingly the application for approval of restrictive intervention is dismissed.

Conclusion:

THE BOARD ORDERS

That the application is dismissed.

Colin McKenzie (Deputy President)
Sandra Taglieri Member
Carolyn Wallace Member