Foss v Guardianship and Administration Board
[2017] TASSC 4
•31 January 2017
[2017] TASSC 4
COURT: SUPREME COURT OF TASMANIA
CITATION: Foss v Guardianship and Administration Board [2017] TASSC 4
PARTIES: FOSS, Kristen in her capacity as
THE SENIOR PRACTITIONER
v
GUARDIANSHIP AND ADMINISTRATION BOARD
FILE NO: 1635/2016
DELIVERED ON: 31 January 2017
DELIVERED AT: Hobart
HEARING DATES: 8 August 2016
JUDGMENT OF: Brett J
CATCHWORDS:
Administrative Law – Administrative tribunals – Statutory appeals from administrative authorities to courts.
Guardianship and Administration Act1995 (Tas), s 76.
Disability Services Act2011 (Tas), ss 42, 43.
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547; Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439; Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354, cited.
Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218, discussed and applied.
Aust Dig Administrative Law [1147]
REPRESENTATION:
Counsel:
Appellant: J Rudolf
Solicitors:
Appellant: Office of the Solicitor General
Respondent: Guardianship and Administration Board
Judgment Number: [2017] TASSC 4
Number of paragraphs: 38
Serial No 4/2017
File No 1635/2016
KIRSTEN FOSS in her capacity as THE SENIOR PRACTITIONER
v GUARDIANSHIP AND ADMINISTRATION BOARD
REASONS FOR JUDGMENT BRETT J
31 January 2017
These proceedings relate to a young man to whom I will refer in the course of my reasons for this decision, as Adam. Adam is 32 years of age. He has an intellectual disability, cerebral palsy, autism and epilepsy. These conditions affect his functionality, mobility and his capacity to communicate. An incident of the underlying conditions is that Adam is, and has always been, incontinent of both faeces and urine. He requires a high level of personal support and care, and currently resides in accommodation, where he is supported by Nexus Inc. Nexus is a disability services provider within the meaning of the Disability Services Act 2011 (the Act). Although Adam does not live with his parents because of his need for support, he has a close relationship with them. They see each other regularly and his parents have a close involvement in decisions relating to his care.
Adam has a longstanding behaviour which consists of using his fingers to probe his anus, manually extract faeces and then smear the faeces on other surfaces. This behaviour creates a real risk of infection to Adam and to others who associate with him, including support workers. The risk of infection to Adam, in particular, is compounded by his tendency to flick his lower lip with his fingers, thereby placing his fingers in or near his mouth.
According to a report prepared by the appellant, the behaviour in question is referred to as Scatolia, which is the smearing of faeces. The report asserts that "Causes of scatolia may be many", and can include physical causes. However, my overview of the evidence would suggest that it is unlikely that Adam has the capacity to appreciate the risks consequent upon the behaviour and, even if he does, he cannot, or chooses not to desist from this behaviour.
For some years, those caring for Adam, have dealt with the behaviour by having him wear a body suit. The material provided to me suggests that this technique was initially introduced approximately nine years ago, when Adam was being supported by a different disability services provider. It was introduced in consultation with, or at least with the support of his parents. As I understand it, the body suit is a simple one-piece garment which is typically worn over incontinence products, but under his external clothing. He is unable to undo or remove it, and it has the practical effect of preventing him from accessing various parts of his body, including his anus. It effectively prevents the smearing behaviour described above. Although it is accepted that Adam does not have the capacity to communicate consent to the wearing of the garment, the evidence provided to me suggests that the body suit does not restrict his movement apart from the prevention of access as described, has no discernible adverse consequences with respect to his health, and he seems comfortable, is not distressed and does not manifest any overt objection to the wearing of the garment.
In December 2015, Nexus made an application to the Guardianship and Administration Board (the Board) pursuant to s 41 of the Act, seeking approval pursuant to s 42 for the carrying out of a restrictive intervention, in particular to have Adam continue to wear the body suit. It would seem that this was the first time that such approval had been sought. The application was made when the perceived need for approval was raised with the disability service provider by the appellant. The appellant is the person appointed to the office of Senior Practitioner, pursuant to s 29 of the Act. Pursuant to s 35, the appellant has certain responsibilities in respect of restrictive interventions, including the obligation to monitor and evaluate their use. By s 36, a disability services provider commits an offence unless it ensures that a restrictive intervention is not carried out on a person with a disability under its care or control, except in certain defined circumstances. It is accepted by all parties, for the purposes of this case, that if the use of the body suit is a restrictive intervention within the meaning of the Act, then it cannot be used in Adam's case unless there is in force an approval from the Board pursuant to s 42 of the Act.
A "restrictive intervention" is defined by s 4 of the Act as follows:
"restrictive intervention means 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 dash
(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."
On 22 April 2016, after a hearing, the Board dismissed the application on the basis that the use of the body suit did not fall within the definition of restrictive intervention as it is defined in s 4 of the Act. In particular, the Board determined that it was satisfied that the use of the body suit, although it would otherwise amount to a restrictive intervention, was an action taken for therapeutic purposes and, hence, is expressly excluded from the definition of "restrictive intervention". Accordingly, the Board determined that approval for the use of the body suit was not required under the Act. The appellant has now appealed from that decision pursuant to s 76 of the Guardianship and Administration Act 1995. That section authorises an appeal to this Court on a question of law, as of right, or on any other question only with the leave of the Court. The grounds of appeal and the appellant's submissions make it clear that the appeal has been brought on a question of law only, and leave has not been sought to bring the appeal on any other question. Although there are two grounds of appeal, the issue raised in both is that the Board erred in law in its determination that the use of the body suit in respect of Adam is for therapeutic purposes.
Restrictive interventions
The Act commenced on 1 January 2012. The legislation deals comprehensively with the funding and provision of disability services to those who, because of a disability, require such services. A "disability services provider" is defined to mean a person or organisation that provides specialist disability services, which in turn are defined to mean services specifically for or related to the support of persons with disability. These services include accommodation support services.
The objects of the Act are stated in s 3. Those objects include the regulation of the use of restrictive interventions by disability service providers. In the second reading speech, Ms O'Connor, who was then the Minister for Human Services, noted that the legislation had been developed as part of a national disability strategy, with a focus on recognising and protecting the rights of people with disability. It was also noted that the Act would specifically deal with an enhanced level of protection for persons with disability, in respect of the use of restrictive interventions. These comments are reflected in s 5 of the Act which sets out a number of principles to be applied in respect of relevant activities. These principles include the following:
"(2) The following principles are to be applied in respect of relevant activities:
(a) the needs and best interests of persons with disability are to be promoted;
(b) so far as is practicable, and having regard to the intellectual capacity of the person with disability, decisions or actions that may directly affect a person with disability —
(i) should only be taken after the person has been consulted; and
(ii) should take into account the wishes of the person, to the extent that they are consistent with the needs and best interests of the person and the safety of the person and others; and
(iii) should only result in the restriction of the freedom of decision and action of the person, if at all, to the smallest extent that is practicable in the circumstances;
(c)the inherent dignity of persons with disability and their individual autonomy, including the freedom to make their own choices and their right to independence, is to be respected; …".
The regulation of restrictive interventions is dealt with in Pt 6 of the Act. Section 34 divides restrictive interventions into two categories, environmental restriction and personal restriction. An environmental restriction relates essentially to the environment of the person. A personal restriction is defined as follows:
"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."
As noted above, s 36 requires a disability services provider, at least in the circumstances of this case, to obtain approval under the relevant section in respect of a restrictive intervention carried out in relation to a person with disability under its care or control. The approval of an environmental restriction is dealt with by s 38 and is by way of administrative approval by the Secretary of the Department of Health and Human Services. However, in respect of a personal restriction, the approval of the Guardianship and Administration Board is required pursuant to s 42 of the Act. Under that section, the Board may, and in some circumstances must hold a hearing in respect of an application for approval of a personal restriction. The circumstances in which approvals may be granted are specified in s 43. That section illuminates the legislative purpose of the regulation of restrictive interventions, and hence is worthwhile setting out in full:
"43 Circumstances in which approvals may be granted
(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."
A further aspect of the legislative regime in respect of the regulation of restrictive interventions is the provision for ongoing monitoring. Hence, s 44 provides that an approval by the Board under s 42 expires 90 days after it is granted, unless it is granted at the conclusion of a hearing, in which case it expires after six months, or such shorter period as is specified in the approval. There is no power given to the Board to put in place an approval for any longer period. The effect of this provision, in the case of Adam's body suit, is that if the body suit is a restrictive intervention in the nature of a personal restriction, then it will be necessary for the disability services provider caring for Adam to reapply for approval on a 90-day or six-monthly basis, as the case may be.
The Board's decision
The Board, in a written decision, proceeded on the basis that it accepted that the use of the body suit would fall within the definition of a restrictive intervention under s 4, unless it was excluded therefrom by the exceptions contained within that definition. This assumption was consistent with all of the expert opinion contained in the evidence submitted to the Board, and consistent with the submissions of the separate legal representative appointed to represent Adam's interests, the appellant, Nexus and Adam's parents. It was also accepted by all concerned and by the Board that if the use of a body suit was a restrictive intervention, then it fell within the definition of a personal restriction. I agree with both conclusions. The use of the body suit is clearly an action taken that restricts the rights and freedom of movement of Adam in the sense that it effectively prevents him from having access to a part of his body and engaging in the subject behaviour. It is a personal restriction because it consists wholly or partially of physical contact with Adam so as to enable behavioural control, and restricts his liberty of movement.
The real issue before the Board, which is also the issue raised on appeal, is whether the use of the body suit is an action taken for therapeutic purposes. As noted above, if it is such an action, then it is excepted from the definition of "restrictive intervention", and its use does not require approval under the provisions noted above. The Board considered the meaning of this term as it is used in the legislation. It noted that it is not defined by the legislation. It considered and followed an earlier decision of a Board differently constituted, NHI (Restrictive Intervention) [2015] TASGAB 1, and accepted and purported to apply the definition of "therapeutic purposes" promulgated in that case as follows:
"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."
The Board noted that it was accepted by the appellant that Adam's behaviour, which is controlled by the body suit, entailed a medical risk of infection to him and to other persons in direct contact with him. It also noted a comment by a medical practitioner contained in a document submitted to it, to the effect that "contamination was distinctly possible". It noted that the appellant had not recommended any immediate change to the regime relating to the body suit, but had recommended a functional assessment, together with an inquiry in respect of whether a specific remedial cause could be identified in respect of the behaviour. The Board accepted that there was no evidence of "any practical alternative reasonably suitable to the use of the body suit".
The Board's ultimate conclusion is summed-up in [15] as follows:
"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 [Adam] and those caring for him. No other practical alternative was identified as currently available for use with [Adam]. 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 grounds of appeal
The appellant's grounds of appeal are as follows:
"1 The Guardianship and Administration Board erred in law in construing the phrase 'therapeutic purposes' in the definition of 'restrictive intervention' in s 4 of the Disability Services Act 2011 in such a way as to include the intervention which was the subject of the Application.
2 The Guardianship and Administration Board erred in law in determining that the intervention which was the subject of the Application was for 'therapeutic purposes' as appearing in the definition of 'restrictive intervention' in s 4 of the Disability Services Act 2011, when no tribunal, properly instructed as to the law, could reasonably make such determination."
The arguments
It is apparent that both grounds of appeal depend upon acceptance of the proposition contained in the appellant’s submissions that "therapeutic purposes" properly defined "does not include an action which controls behaviour for the purpose of preventing (or reducing) the risk of infection or injury". The effect of the appellant's position is that therapeutic purposes should be construed narrowly in order to maintain and be consistent with the efficacy of the restrictive intervention regulation regime contained in the legislation. The appellant does not, however, submit that this Court should provide a "precise exhaustive definition" of the term, but should find that it does not extend to the type of intervention constituted by the use of the body suit.
The appellant relies heavily on the purpose of the legislation being to provide regulation and oversight in relation to restrictive interventions. According to the appellant's argument, the consequence of a broad interpretation of "therapeutic purposes" will be that the vast majority of actions which would otherwise be caught by the regulatory provisions will be excluded under that exception. The appellant submits that the definition of the exception should, therefore, be limited to actions which are aimed to treat by curing or relieving a disease or disorder, and does not include an action which merely prevents (or reduces) the risk of infection or injury, although it is not submitted that the term should be interpreted to be "as narrow as to encompass only medical treatment".
The disability services provider was represented at the hearing of the appeal by its Chief Executive Officer, Mr Jessop. Mr Jessop submitted that the use of the body suit is a therapy. He submitted that prevention is a legitimate therapeutic purpose encompassed by the legislative exception. He noted the real risk to health occasioned by Adam's behaviour and made the point that the body suit is the least intrusive type of restrictive intervention available which effectively responds to this behaviour. A body suit means that Adam can confidently be taken out in public and there are more options available to him in terms of his day-to-day life. According to Mr Jessop, "The use of the suit enables a richer and more varied life for Adam as he can move freely about his environment and community."
These sentiments are reflected in submissions made by Adam's father. He made the point that the term "therapeutic" should be taken to include prevention of illness. He was concerned that the six-monthly review would be onerous and pointless given the long term history of the behaviour in question. He believes that the body suit is the only effective way of responding to and controlling the consequences of Adam's behaviour.
The nature of the appeal
As already noted, the appeal is limited to "a question of law". Section 76(4) of the Guardianship and Administration Act provides that the Court "must hear and determine the appeal and may make an order confirming the determination, setting aside the determination and remitting the matter to the Board with directions or substituting its own determination".
In this case, there is no dispute about the underlying facts upon which the Board's decision was based. In particular, it is accepted by all parties that the use of the body suit restricts Adam's freedom of movement, that it is effective in controlling the behaviour in question, and that that behaviour, if it is not controlled, will create a real risk of infection to Adam and to others who come into contact with him. I am not as certain that it was accepted by the appellant that there was no "practical alternative reasonably suitable" to the use of the body suit, but there was also no evidence to the contrary. The only real question is whether the use of the body suit in those circumstances falls within the statutory exception to restrictive interventions described as "therapeutic purposes".
It can be seen from the above that the appeal is against a decision which determined whether or not facts as found fell within the statutory criteria or definition of "therapeutic purposes". Whether such a question involves a question of law or fact has been the subject of judicial comment in a number of cases. In Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 at [24], Gleeson CJ, Gummow and Callinan JJ said:
"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General:
'[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law'." [Footnote omitted.]
The same question was the subject of consideration by the Full Court in Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354. Crawford J (as he then was) said:
"24 The passage from The Australian Gas Light Co v The Valuer-General cited above, was approved by Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450. Their Honours also referred, at 451, to Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 9, where it was made clear by Mason J, with whom Gibbs, Stephen, Murphy and Aickin JJ agreed, that a question exclusively of law arises if, on the facts found, only one conclusion is open concerning whether the case does or does not come within a statutory expression.
25 An obvious corollary to what was so stated is the following proposition from Mason JA in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557:
'[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.
The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact'."
These comments are apposite to this case. If the conclusion arrived at by the Board on the undisputed facts before it was open to it as a reasonable conclusion, notwithstanding that an alternative might also have been considered a reasonable conclusion, then any complaint about that decision does not involve a question of law, but rather relates to a question of fact. In that case, I have no jurisdiction, without a grant of leave, to determine that complaint and the Board's decision will stand. In other words, the appeal can only succeed if I conclude that the Board's finding that the use of the body suit was for therapeutic purposes, was not reasonably open to it, having regard to the meaning of that term as it is used in the legislation.
Therapeutic purposes
In formulating the definition of therapeutic purposes in NHI (Restrictive Intervention), the Board relied heavily on judicial comments emanating from the High Court in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218. In that case, the High Court was concerned with the lawfulness of a decision made by the parents or guardians of an intellectually disabled minor, to approve a medical procedure which would achieve her sterilisation. The issues in the case included a consideration of when such a procedure might be properly authorised by the consent of the parent or guardian, and the extent to which that consent may or must be supervised or exercised by a court in its parens patriae jurisdiction. Various judgments referred to the determination of such issues by courts in other countries, including notably the Canadian decision of E v Eve (Re Eve) [1986] 2 SCR 388, (1986) 31 DLR (4th) 1, in which the distinction between therapeutic and non-therapeutic medical treatment was considered determinative of the question of whether such a procedure with the consent of parents or guardians was lawful. The majority noted that the distinction drawn between therapeutic and non-therapeutic treatment in Re Eve had been criticised by the House of Lords in Re B (a minor) [1988] AC 199. In that case, it was held that the question was appropriately resolved on the basis of the welfare or "best interests" of the child.
In Marion's Case, the majority noted and implicitly accepted a distinction drawn by Nicholson CJ in the decision of the Full Court of the Family Court under appeal, between "therapeutic" and "non-therapeutic" operations "where the term therapeutic means treatment of some malfunction or disease". It was effectively assumed that a therapeutic operation properly fell within the ambit of the authority of the parent or guardian to give consent in an appropriate case. The majority said, when speaking of the sterilisation procedure:
"Court authorization is necessary and is, in essence, a procedural safeguard. Our reasons for arriving at this conclusion, however, do not correspond precisely with any of the judgments considered. We shall, therefore, give our reasons. But first it is necessary to make clear that, in speaking of sterilization in this context, we are not referring to sterilization which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions 'therapeutic' and 'non-therapeutic', because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be."
The majority then went on to consider what would be necessary to obtain approval from a court in its parens patriae jurisdiction, to a sterilisation procedure which did not fall within the basic definition of "therapeutic".
Brennan J (as he then was) was in dissent, but his difference with the majority position related to the question of whether the distinction between therapeutic or non-therapeutic treatment was determinative of whether such a procedure should be approved at all. However, he also considered that the starting point was to draw that distinction, and embarked on a far more detailed analysis of when such treatment might be considered therapeutic or non-therapeutic, than had the majority. In a passage referred to by the Board in NHI, his Honour said:
"It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. "Non-therapeutic" medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes."
His Honour's clear focus in the determination that treatment was therapeutic was on the purpose of the treatment. The focus on purpose was explained in further detail later in his judgment, by the consideration of different categories of purpose which would fall in or out of the definition, as the case may be. This analysis also noted the difficulty and imprecision involved in the determination and the importance of factual considerations thereto. He said:
"Of course, factual difficulties are unavoidable in deciding whether medical treatment is therapeutic or non-therapeutic but, in principle, the distinction is clear and, in particular, the purpose of therapeutic medical treatment can be clearly distinguished from other purposes. Therapeutic medical treatment is calculated to enhance or maintain as far as practicable the physical or mental attributes which the patient naturally possesses; it is not calculated to impair or destroy those attributes and the capacities they afford. Thus, there is a rationale which justifies the administration of therapeutic medical treatment without the patient's consent when the patient is incapable of consenting or refusing consent. It needs no argument to show that a malignant tumour of the uterus justifies the performance of an hysterectomy or that multiple cysts on an ovary may dictate its surgical removal. However, where menstruation produces or is likely to produce a psychiatric disorder of such severity as to require its suppression — as occurred in Re X — consideration must be given to the different treatments reasonably available and appropriate to suppress menstruation and to their medical advantages and disadvantages in order to ensure that the least invasive of the treatments is selected. Proportionality and purpose are the legal factors which determine the therapeutic nature of medical treatment. Proportionality is determined as a question of medical fact. Purpose is ascertained by reference to all the circumstances but especially to the physical or mental condition which the treatment is appropriate to affect." [Footnote omitted.]
With respect to non-therapeutic purposes, his Honour identified a category which he termed "base purposes" which he felt would clearly not fall within the ambit of therapeutic purposes. This category includes sterilisation for the purpose of eugenic selection, economic reasons, or the convenience and purposes of others. However, he also noted a further category of non-therapeutic purposes, which might still be regarded as being in the best interests of an intellectually disabled child, but which could be "gathered under the broad description of 'preventative'; to prevent the risk of a pregnancy which the child could not properly understand and the concomitant risk of parenthood with responsibilities beyond the capacity of the child to discharge". In respect of this category, his Honour's views were expressed as follows:
"Because non-therapeutic purposes are, by definition, related to social values or values other than the maintenance and enhancement of the natural attributes and functions of the intellectually disabled female child, I am unable to postulate a case where it would be justifiable to authorize her sterilization."
It can be seen that this analysis of the proper exercise of the parens patriae jurisdiction in relation to a procedure such as sterilisation on a disabled minor, has close similarities to the legislative structure provided for the regulation of restrictive interventions under the Act. Both relate to the exercise of a supervisory jurisdiction in respect of actions which will affect the physical and personal integrity of a person unable to lawfully provide consent to such action, or to effectively resist the execution of such an action. In both the Act and his Honour's analysis, there is an acceptance that the action in question might be taken for either therapeutic purposes or non-therapeutic purposes, with the non-therapeutic purposes including those which are in the best interests of the person concerned and those which are not. This is reflected in the Act because, as was correctly pointed out by the Board in its decision in NHI, a restrictive intervention, which by definition excludes an intervention undertaken for therapeutic purposes, can still be approved if it is carried out only for the primary purpose of ensuring the safety, health or wellbeing of the person (see s 43(1)(a)).
It seems to me that the expression of the distinction between therapeutic and non-therapeutic treatment as it was stated by Brennan J in Marion's Case, that is, that treatment will be for therapeutic purposes "when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered" is a useful guide to the meaning of "therapeutic purposes" as it appears in the Act. However, that case was dealing with the question in the context of a very specific type of medical treatment. The Act seeks to apply a definition in a much wider context. Hence, the wider formulation of the purpose of the action as formulated in NHI is a more pertinent statement of the ambit of actions which fall within the definition of therapeutic purposes. Combining this formulation with the test proposed by Brennan J, a restrictive intervention will be for therapeutic purposes only when it is administered for the chief purpose of "(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", and conversely will not be for therapeutic purposes when it is inappropriate or disproportionate for that purpose, or carried out chiefly for another purpose. Hence, whether an action is taken for therapeutic purposes will be determined by resolution of the factual questions of proportionality and purpose. In this regard, I refer to Brennan J's description of this exercise as follows:
"Proportionality and purpose are the legal factors which determine the therapeutic nature of medical treatment. Proportionality is determined as a question of medical fact. Purpose is ascertained by reference to all the circumstances but especially to the physical or mental condition which the treatment is appropriate to affect."
In my view, this analysis and formulation is consistent not only with the legislative structure, but also with the purpose of the provisions in question. As is conceded by the appellant, the reference to a restrictive intervention is wider than just medical treatment, which was the only subject of consideration in Re Marion. The legislative mechanism which requires the approval and monitoring of restrictive interventions is admittedly onerous and is intended to provide close supervision of the application of such interventions. As was noted in the comments in the second reading speech and in the objects of the Act, this legislative mechanism is intended to achieve the purpose of promoting the best interests and respecting the inherent dignity of people who have disabilities. Hence, the legislation recognises the reality that restrictive interventions will sometimes be necessary, but seeks to minimise their use and, in time, eliminate their use altogether. Whilst the term "therapeutic purposes" should not be construed so widely that the underlying legislative purpose is frustrated, it is clear that it is also intended to introduce into the definition of restrictive interventions, sufficient flexibility to ensure that practices which are truly for therapeutic purposes and properly proportionate to such a purpose do not fall within the strict approval monitoring regime of the legislation. This regime is reserved for the rare procedure, undertaken for non-therapeutic purposes, but which satisfies the requirements of s 43.
It follows that the appellant's principal concern, that a broad definition of "therapeutic purposes" will result in a large number of actions not being caught by the strict regulatory regime, is, in fact, a result which is in accordance with the legislative purpose as expressed in the scheme of the legislation. The application of that regime to cases which properly fall within the definition of "therapeutic" may, in fact, be contrary to the best interests of persons with disability because it unnecessarily imposes an onerous, restrictive and inflexible regime on actions which depend for their efficacy, on flexibility. Of course, it is implicit in the definition of "therapeutic", as explained above, that once a particular practice is no longer able to answer the tests of purpose and proportionality, then it will no longer be for therapeutic purposes, and hence will be a restrictive intervention, which is unlawful without approval. This again is entirely consistent with the scheme of the Act which has detailed provisions for enforcement and monitoring of the use of restrictive practices.
Resolution
It is apparent from the Board's reasoning as discussed above, that its determination that the use of a body suit was for therapeutic purposes was heavily influenced by its factual finding that the "use of the body suit is necessary and reasonable to avoid and prevent infection" to Adam. It is also apparent from its immediately preceding analysis, that it took the view that there was "no practical alternative reasonably suitable, able to be used in place of the body suit." This was, in effect, a finding which implies that the action is proportionate to the stated purpose.
Having regard to the meaning of therapeutic purposes as discussed above, it is impossible to accept the appellant's contention that "an action which controls behaviour for the purpose of preventing (or reducing) the risk of infection or injury" cannot as a matter of law be taken for therapeutic purposes. It seems to me that the appellant's proposition incorrectly conflates the nature of the action with its purpose. Applying the determinative process of considering whether an action is taken for a therapeutic purpose by reference to purpose and proportionality, the purpose of the intervention in this case is, in accordance with the findings of the Board, to prevent infection. It may also, of course, have other reasons which are not necessarily therapeutic, such as the avoidance of unpleasantness and embarrassment to Adam when in public, and the avoidance of infection to others. However, the finding of the Board placed emphasis on the prevention of the risk of infection or injury to Adam as essential to the purpose of the action, and in this sense, the action can be seen as properly answering the definition of therapeutic purposes. As noted in the above discussion, an action taken for preventative reasons, provided it answers the dual test of purpose and proportionality, can be an action taken for therapeutic purposes.
Ultimately, the question of whether this particular action falls within the statutory expression of the exception is a matter of judgment and degree and one "upon which different minds may take different views" (Mason JA in Williams v Williams Pty Ltd). The judgment and assessment adopted by the Board in this case was heavily dependent upon the underlying facts found by it, and which are not challenged or capable of challenge in this appeal. Whilst there is an understandable desire, particularly on the part of those in the position of the appellant and disability service providers to achieve certainty in respect of these definitions, the legislative structure, in fact, requires a case by case approach, and hence absolute certainty is impossible to achieve. This is consistent with a statutory definition which responds to the infinite variety of circumstances thrown up by the individual needs and attributes of each person, and the wide variety of therapeutic and non-therapeutic purposes which might be required in any particular situation. Certainty, consistency and an appropriate response are achieved, not by a narrow statutory definition, but by using that definition to set out the broad parameters of the decision-making process, and then leaving the actual decision in the hands of specialist office holders and, ultimately, a specialist tribunal. The Board, in particular, can be seen as a decision-making tribunal with the specialist skill and expertise appropriate to enable judgments to be made in specific cases within the broad parameters provided in the legislation.
In those circumstances, it would be impossible for me, even if I did not agree with the Board's decision having regard to the specific facts of this case, to conclude that its determination that the use of the body suit was for therapeutic purposes and, hence, excluded from the definition of restrictive intervention, was an error of law. The Board, as it is required and qualified to do, made a judgment about whether on the underlying facts as found by it, the use of the body suit was an action undertaken for therapeutic purposes. The determination was, in essence, correctly based on the dual test of purpose and proportionality. The decision it made was entirely open to it and I see nothing about the decision or the reasoning which led to it which would satisfy me that there was an error on the part of the Board, and certainly not an error of law.
The appeal is dismissed.
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