CMD (Restrictive Intervention)

CITATION:	CMD (Restrictive Intervention) [2021] TASGAB 20
HEARING DATE(S):	23 April 2021
DATE OF ORDERS:	23 April 2021
DATE OF STATEMENT OF REASONS:	30 April 2021
BOARD:	Ms R Holder, (President) Mr M Trezise, (Member) Dr C Handbury, (Member)
APPLICATION:	Application for Approval of a Restrictive Intervention
CATCHWORDS:	Environmental restrictive interventions – behaviours of concern – approval sought for modification of mobile telephone – guardian sought for consent to ongoing monitoring of mobile telephone – capacity to make decisions about the restrictive intervention sought – capacity to make reasonable judgments about personal matters – need for a guardian – assisted decision making with NDIS planning and service delivery
LEGISLATION CITED:	Guardianship and Administration Act 1995, ss3, 6, 20, 74; Disability Services Act 2011 s4, 5, 34, Part 6 Division 3, s 42, 43; National Disability Insurance Scheme Act 2013 (Cth), s17A;
PUBLICATION RESTRICTION:	This decision has been anonymised for the purposes of publication.

Statement of Reasons

Background

[The disability service provider] made an Application to the Guardianship and Administration Board (‘the Board’) for Approval of a Restrictive Intervention concerning Mr CMD (‘the Application’). The restrictive intervention sought is an environmental restrictive intervention.
[The disability service provider] (‘the Applicant’), is a disability service provider within the meaning of the Disability Services Act 2011 (‘DSA’).
Mr CMD is a 25-year-old man who has a funded NDIS plan and is supported by [the disability service provider] for whole of life services.
Mr CMD exhibits behaviours of concern that involve him accessing child pornography websites and downloading 17 known images.
The Application makes a request for approval of environmental restrictive interventions.
After proceeding to hearing the Board dismissed the Application.
The Applicant has requested a Statement of Reasons, pursuant to section 74 of the Guardianship and Administration Act 1995 (‘GAA’).

Hearing

The Board heard and determined the Application on 23 April 2021.
In attendance at the hearing were:
a.Mr BXP Manager of Positive Behaviour Support at [the disability service provider] (Applicant);
b.Mr Charley Hodgson, Senior Practitioner under the DSA; and
c.Ms Valerie Hannon from the Office of the Public Guardian.
Mr CMD was not present at hearing. He had been provided with notice of the hearing and had been contacted by telephone by the Board Registry. The Applicant gave evidence he had reminded Mr CMD of the hearing a couple of days prior to the hearing but Mr CMD indicated he was not attending.
The Board had before it the following documents:
a.Application for Approval of a Restrictive Intervention filed by the Applicant dated 24 March 2021;
b.Healthcare Professional Report (‘HCPR’) of Dr Mark Rathbone dated 22 March 2021;
c.Statement from the Senior Practitioner, Mr Charley Hodgson, dated 25 March 2021;
d.Case and Care Plan dated 27 February 2015 from Children & Youth Services;
e.Disability Assessment Advisory Team Closure Report dated 26 August 2013;
f.[the disability service provider] – Protocol for agreed usage of [the disability service provider] internet, dated 13 May 2020;
g.Letter from Australian Federal Police to [the disability service provider] dated 2 March 2021;
h.Email from D/Sgt Aaron Hardcastle to Mr BXP, [the disability service provider] dated 14 October 2020;
i.Letter from Tasmania Police to [the disability service provider] dated 22 April 2021;
j.Administration Order dated 26 October 2018; and
k.Public Trustee Report dated 3 November 2020.

Legislation

Part 6 Division 3 of the DSA provides for regulation of restrictive interventions by the Board.
Section 4 of the DSA defines a restrictive intervention as meaning:
... 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 –
(a) taken for therapeutic purposes; or
(b) taken to enable the safe transportation of the person; or
(c) authorised under any enactment relating to the provision of mental health services or to guardianship.
Disability is defined in section 4 of the DSA as meaning:
in relation to a person, means a disability of the person which –
(a)           is attributable to a cognitive, intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and
(b)           is permanent or likely to be permanent; and
(c)           results in –
(i)     a substantial restriction in the capacity of the person to carry on a profession, business or occupation, or to participate in social or cultural life; and
(ii)    the need for continuing significant support services; and
(d) may or may not be of a chronic episodic nature;
The DSA is silent as to the issue of whether a person with a disability must also have decision making incapacity and does not contain a definition of capacity or incapacity. The general principles set out in section 5 of the DSA provide some relevant guidance:
(h) people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity;
(i) people with disability should be supported in all their dealings and communications so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs;
(j) people with disability should have their privacy and dignity respected;
…
(2) If this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out above and the following principles:
(a) people with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves;
At common law the presumption exists that adults have the capacity to make decisions that affect their own lives unless that presumption is rebutted.
Section 34 of the DSA defines two types of restrictive interventions:
environmental restriction, in relation to a person with disability, means a restrictive intervention in relation to the person that consists of the modification of an object, or the environment of the person, so as to enable the behavioural control of the person but does not include a personal restriction;
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 power of the Board to approve a restrictive intervention is set out in section 42 of the DSA:
(1) The Guardianship and Administration Board, after receiving under section 41 an application from a disability services provider or funded private person, may grant, or refuse to grant, approval for the provider or person to carry out in relation to a person with disability specified in the approval –
(a) a type of restrictive intervention, specified in the notice, that is a personal restriction; or
(b) a type of restrictive intervention, specified in the notice, that is an environmental restriction.
…
(5) The Guardianship and Administration Board may hold a hearing in respect of an application under section 41 for an approval.
(6) For the purposes of subsection (5) , a hearing is to be held under Division 1 of Part 10 of the Guardianship and Administration Act 1995 as if a reference in that Division –
(a) to an application were a reference to an application for an approval under this section; and
(b) to medical or dental treatment were a reference to a restrictive intervention; and
(c) to a registered practitioner were a reference to the disability services provider, or funded private person, who made the application.
(7) At the hearing of an application for the purposes of subsection (5) , the Guardianship and Administration Board, in addition to granting or refusing to grant an approval under subsection (1) , may –
(a) require a party to the hearing to provide to the Board any information required to be contained in an application under section 19 of the Guardianship and Administration Act 1995 ; and
(b) make an order under section 20(1) of the Guardianship and Administration Act 1995 appointing a full or limited guardian in relation to the person with disability to whom the approval relates, as if the application for an approval under this section were an application under section 19 of the Guardianship and Administration Act 1995 .
Section 43 of the DSA sets out what the Board must be satisfied of before it can proceed to approve a restrictive intervention.
(1) An approval for the carrying out of a type of restrictive intervention in relation to a person with disability may only be granted by the Guardianship and Administration Board under section 42 if the Board is satisfied that –
(a) the type of restrictive intervention will be carried out only for the primary purpose of ensuring the safety, health or wellbeing of the person or other persons; and
(b) the restrictive intervention is the type of restrictive intervention that is the least restrictive of the person's freedom of decision and action as is practicable in the circumstances.
(2) In determining whether to grant an approval under section 42 for the carrying out by a disability services provider or funded private person of a type of restrictive intervention in relation to a person with disability, the Guardianship and Administration Board must have regard to –
(a) the best interests of the person with disability; and
(b) the consequences to the person with disability if restrictive intervention of that type is carried out in relation to the person; and
(c) the consequences to the person with disability, or other persons, if restrictive intervention of that type is not carried out in relation to the person with disability; and
(d) any alternative method reasonably suitable and able to be used in relation to the person with disability to control the behaviour for which the type of restrictive intervention has been proposed; and
(e) the nature and degree of any significant risks to the person with disability if the restrictive intervention is carried out; and
(f) whether, and the extent to which, carrying out the restrictive intervention will promote or reduce the safety, health and wellbeing of the person with disability.
Under section 20 of the GAA, the Board may make an order appointing a full or limited guardian in respect of Mr CMD if it is satisfied that:
a.    he is a person with a disability; and
b.    he is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his personal circumstances; and
c.     he is need of a guardian.
Disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.[1]
[1] Guardianship and Administration Act 1995 (Tas), s3.
In determining whether or not an order should be made, section 20 of the GAA requires that:
a.the Board consider whether Mr CMD’s needs could be met by other means less restrictive of his freedom of decision and action; and
b.the Board be satisfied that an order would be in Mr CMD’s best interests; and
c.the Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet Mr CMD’s needs, and if a limited order is made, the order must be the least restrictive to Mr CMD’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principles in section 6 of the GAA which adds requirements that:
a.the best interests of Mr CMD be promoted; and
b.the wishes of Mr CMD are, if possible, carried into effect.

What restrictive practices are sought?

The Applicant has made application to the Board for the approval to restrict Mr CMD’s access to certain applications on his mobile telephone and secondly, to have software installed on his mobile phone to enable a nominated person to monitor key strokes (keywords being used) on his mobile phone.
In the statement from the Senior Practitioner, Mr Hodgson states:
[The disability service provider] restricting specific websites to prevent [Mr CMD] viewing child exploitation material, or restricting access to his phone completely would be actions that fall under the definition of environmental restrictions as [the disability service provider] is trying to control his behaviour of concern. This definition, however, does not cover the action of ongoing monitoring of [Mr CMD]’s phone usage. Given this proposed action is a serious infringement on [Mr CMD]’s rights to which he would be unable or unwilling to provide consent, the Board may need to consider the option of appointing a substitute decision maker… the Senior Practitioner is of the view that the Board appoint a limited guardian under s42(7b) of the Disability Services Act 2011.
The Board concurs with the Senior Practitioner’s view that the ongoing monitoring of keystrokes on Mr CMD’s mobile phone by a nominated person or IT company does not fall within the definition of environmental restriction under section 34 of the DSA. Given this, the Board needs to consider whether a guardian should be appointed for Mr CMD and if so, with what powers.

Evidence and findings on capacity

The Board has before it a HCPR from Dr Mark Rathbone, General Practitioner that states that Mr CMD has an intellectual disability, which is mild and static; an acquired brain injury, which is mild and static; and ADHD, which is moderate and static. A Case and Care Plan from Children and Youth Services – Child Protection Services dated 27 February 2015 confirms the diagnosis of Mr CMD’s disabilities. The medical evidence as to diagnosis was not disputed.
Dr Rathbone states in the HCPR that by reason of the stated disabilities Mr CMD experiences deficits in relation to planning and reasoning skills, impulse control and susceptibility to influence/suggestibility. Dr Rathbone opines that Mr CMD is able to make decisions about visits, and friendships. Dr Rathbone does not comment on Mr CMD’s capacity to make decisions about the use of his mobile phone. Dr Rathbone received a notice of hearing but was not present at the hearing. There is no other medical evidence before the Board commenting on Mr CMD’s capacity for decision making relating to the matters before the Board.
The Senior Practitioner in his Statement stated: ‘…Mr CMD lacks the insight and cognitive capacity to realise that his actions are illegal and potentially damaging to his psychological well-being. On the other hand, Mr CMD does seem to have enough cognitive capacity and money to be able to find solutions to the attempts made to stop the illegal activity.’ In his oral evidence the Senior Practitioner commented a number of times on Mr CMD’s ability ‘to stay one step ahead’ and ‘changing the goalposts in respect of the behaviours of concern’.
The Applicant gave evidence at hearing that he agreed with Dr Rathbone’s comments. He stated that Mr CMD manages his own social networks online and in person, but has a cycle with relationships whereby he gets involved with a person, the relationship is intense and then falls apart. The Applicant indicated it was difficult to comment on Mr CMD’s online relationships. The Applicant stated Mr CMD has an idea and then acts on it. When asked by the Board whether Mr CMD is IT savvy, he responded ‘Yes quite IT savvy.’ The Board put to him whether Mr CMD has capacity when it comes to IT and the Applicant responded, ‘yes’.
Detective Sergeant Aaron Hardcastle, Australian Federal Police (AFP) in a letter to the Applicant dated 2 March 2021 states:
it was evident to attending police that [Mr CMD] had a severely impaired mental capacity ….Police have observed no positive change in [Mr CMD]’s mental capacity and despite exhaustive explanation of the legal implications, his understanding of the illegal nature of his actions and harm to children has not improved….An assessment regarding prosecution of [Mr CMD] has been undertaken by the AFP. Due to the nature of the mental impairment suffered by [Mr CMD], it is not considered in the public interest to prosecute [Mr CMD] as there are no reasonable prospects of conviction.
It appears this assessment of capacity by Police was based on their contact and observation of Mr CMD, as no medical evidence of capacity was referred to in the letter. It is also noted that the assessment regarding prosecution would be on the basis of whether Mr CMD would be found guilty of crimes ‘beyond a reasonable doubt.’
At hearing the Board questioned parties as to what evidence it had before it of Mr CMD’s decision making capacity relating to Mr CMD’s appropriate telephone use and the restrictive interventions sought, and no evidence was indicated.
The Board is persuaded by the medical evidence from Dr Rathbone that Mr CMD is a person with a disability as defined in the DSA, and also as defined in the GAA.
Given the principles in the DSA,[2] and the common law presumption that a person has capacity unless established otherwise, the Board considers that the DSA only provides the Board with power to approve a restrictive intervention in respect of a person with a disability who does not have the decision making capacity to consent, or not, to the restriction for which approval is sought.
[2] It is also noted the National Disability Insurance Scheme Act 2013 (Cth) section 17A(1) includes a presumption of capacity. ‘(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.’
The Board is not satisfied on the evidence before it that Mr CMD is incapable of making decisions about the requested restrictive intervention that impacts on the modification of his mobile telephone, and the ongoing monitoring of his mobile phone. The Board has no evidence from a psychiatrist or psychologist that Mr CMD lacks decision making capacity for these matters. Dr Rathbone does not specifically address these matters.
The Board is mindful that capacity can be decision specific and while Mr CMD may not be found, for example, to have capacity to make reasonable judgments about his financial estate or other matters, this does not translate that he lacks decision making capacity on the use of the requested restrictive interventions or other issues. The oral evidence received by parties at hearing was that Mr CMD is ‘IT savvy’ and appears to have some knowledge and abilities in this area.
On this same basis, the Board finds that pursuant to section 20 of the GAA, it is not satisfied Mr CMD is unable to make reasonable judgments about the subject of the Application, that is, to have software installed on his mobile phone and to enable a nominated person to monitor key strokes on his mobile phone.
The issue of whether there is a need for a guardian to be appointed with any other power was also raised and discussed at hearing. The Board heard evidence that identified no accommodation decisions were required to be made. Mr CMD’s accommodation is stable and there is a duty of continuity of care being provided to him by [the disability service provider] or another provider.

In relation to service delivery, this is funded through Mr CMD’s National Disability Insurance Scheme (NDIS) Plan. The Applicant stated Mr CMD possibly did not have capacity to make decisions about service provision and further indicated that Mr CMD goes into planning meetings and sometimes says no to particular services and the planner responds to that. The Applicant also commented that if [the disability service provider] is there to advocate on his behalf this is not a problem but [the disability service provider] is not always notified of the planning meeting.
The Senior Practitioner submitted that an expert behaviour support practitioner with experience in forensic matters, most likely sourced from interstate would provide the best outcomes for Mr CMD. A decision about appointment of an appropriate behaviour support practitioner would need to be made. The Senior Practitioner supported that a guardian be appointed for this purpose.
Before the Board can consider whether there is a need for a guardian to make decisions regarding NDIS related matters, it needs to consider whether Mr CMD has capacity to make his own decisions for NDIS related matters. Under the NDIS a person with disability is presumed to have capacity to make decisions that affect his/her own life. The National Disability Insurance Scheme Act 2013 (NDIS Act) recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant or have a guardian to make decisions on behalf of a participant, but only when it is not possible for participants to be assisted to make decisions for themselves.
The HCPR from Dr Rathbone states specifically in relation to decision making about the NDIS ‘as Above.’ In relation to the issue of support services, which is above the question of NDIS on the HCPR template, Dr Rathbone comments that Mr CMD’s decision making is ‘impulsive and poorly considered.’ Dr Rathbone has ticked the box indicating he believes Mr CMD’s disabilities affects his capacity to make reasonable judgements about the NDIS.
The Applicant gave evidence that Mr CMD is able to manage his NDIS Plan with support co-ordination and assisted decision making, and that this is what has been occurring to date. Ms Hannon confirmed that is how it is meant to work under the NDIS and noted the key is having a good support co-ordinator.
The Board is not satisfied based on the evidence of the Applicant, and the lack of detailed medical evidence provided, that Mr CMD is unable to make reasonable judgments about NDIS related matters. The evidence indicates Mr CMD is able with assistance to participate in the planning meeting with the support co-ordinator and make decisions about services and service providers. Mr CMD is entitled to make choices about what services he wants and exercise his will and preferences.
The Board also notes from evidence at hearing that Mr CMD had attended Family Planning Tasmania for six sessions of education about the effects of child pornography and had attended counselling with a psychologist at the beginning of last year before it was stopped because of COVID-19 restrictions, and has commenced seeing a psychologist this year on a monthly basis. He has attended all sessions but one. He has not demonstrated an unwillingness to access services or meet with allied health professionals.
For the above mentioned reasons the Board is not satisfied the criteria in section 20 of the GAA is met.
The Board wishes to make the observation that since being contacted by the AFP [the disability service provider] have appeared to be proactive in supporting Mr CMD in the following ways:
a.[the disability service provider] have organised and encouraged education and counselling for Mr CMD by external counsellors and psychologists.
b.[the disability service provider] have developed a ‘Protocol for Agreed Usage of [the disability service provider] Internet; which has been signed by Mr CMD and dated 13 May 2020. The Protocol aims to assist Mr CMD to use the internet appropriately and maintain the use of [the disability service provider]’s WIFI internet.
c.Considering and upholding Mr CMD’s human rights including those of equality, privacy, and ability to exercise choice, as articulated in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).[3] The Applicant gave evidence that the focus has been on what is the least restrictive measures that can be put in place while allowing Mr CMD to maintain social online networks. Evidence was given that Mr CMD seeks online social connection through use of his mobile phone and use of apps such as Facebook and chat rooms, which is important to him.
d.Through assisted decision making, [the disability service provider] have an agreement with Mr CMD whereby he can access only mutually agreed apps on his mobile phone. To date he has not been denied any apps he wants which includes Facebook, Sony PlayStation and apps to access adult pornography sites.
e.[the disability service provider] have implemented fortnightly meetings with Mr CMD to remind him of appropriate internet usage.
[3] The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which was ratified by Australia on the 17 July 2008.
While the Board received evidence at hearing as to the criteria in section 43 of the DSA, there is no need for the Board to set out that evidence or to make findings on it, given it is not satisfied on the question of decision making incapacity.
For the reasons set out herein, the Board Orders that the Application for Approval of a Restrictive Intervention filed by [the disability service provider] is dismissed.

Persons with disability enjoy their inherent right to life on an equal basis with others. (Article 10)
Persons with disabilities are not to be subjected to arbitrary or illegal interference with their privacy, family, home, correspondence or communication. The privacy of their personal, health and rehabilitation information is to be protected like that of others (Article 22).
Education of persons with disabilities must foster their participation in society, their sense of dignity and self-worth and the development of their personality, abilities and creativity (Article 24).

[2021] TASGAB 20

23 April 2021