GAS
[2013] QCAT 194
•30 April 2013
| CITATION: | GAS [2013] QCAT 194 |
| PARTIES: | GAS |
| APPLICATION NUMBER: | GAA657-13 / GAA658-13 / GAA959-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 26 April 2013 and 30 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member G Quinlivan, Member |
| DELIVERED ON: | 30 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal approves UnitingCare Community containing and secluding, chemically restraining, physically restraining and restricting access of GAS to objects in accordance with the Positive Behaviour Support Plan dated 29 April 2013 subject to any changes notified by the Chief Executive, Department of Communities, Child Safety and Disability Services. 2. Unless the Tribunal orders otherwise, this approval remains current for six (6) months. 3. UnitingCare Community must give written notice to the Tribunal within seven (7) days of receipt of the new vehicle for GAS. 4. Brian Cronin is appointed as the representative for GAS to represent his views, wishes and interests in relation to the use of restrictive practices. 5. This appointment remains current until 4:00pm 30 April 2014. |
| CATCHWORDS: | GUARDIANSHIP – restrictive practices – where adult engages in violent and self injurious behaviour – where Positive Behaviour Support Plan includes outdated provisions – where approval for seclusion could not be made on basis of outdated plan – where revised plan could support approval for seclusion – where representative considered appropriate to inform tribunal of interests of adult Disability Services Act 2006 |
APPEARANCES and REPRESENTATION (if any):
Carole Evan, Alex Lewis, Kathy Rayner, Janet Millward appeared from UnitingCare Community
Branka Carter, Sharon Monahan, Sandra Chalmers appeared from Department of Communities, Child Safety and Disability Services and were represented by Kathryn Mahoney, solicitor, Department of Communities, Child Safety and Disability Services
Jane Antoine appeared from the Office of the Adult Guardian
REASONS FOR DECISION
GAS is 26 years of age and he is a very troubled young man. He displays violent outbursts during which he is at risk of causing harm to himself and other people. His behaviour is likely to be associated with autism and an intellectual impairment and his severe communication difficulties.
GAS has a very supportive family but he cannot live with his family due to his challenging behaviours. He lives alone in accommodation where he is provided with 24 hour support by UnitingCare Community funded by the Department of Communities, Child Safety and Disability Services. He has two carers assigned to him during the day and then one carer on a sleepover shift at nights. The Tribunal was told that the cost of supporting GAS was in the region of $500,000 per year.
The Tribunal has in the past approved the care provider using specified restrictive practices to respond to GAS’s challenging and harmful behaviour. That approval was given in accordance with a Positive Behaviour Support Plan under the Disability Services Act 2006. The approval was due to expire on 30 April 2013. The Tribunal arranged a hearing to consider if approval of restrictive practices should be given after that date.
QCAT was provided with a new Positive Behaviour Support Plan dated 8 April 2013. Prior to the development of the new plan, some new assessments had been carried out to provide up to date information in the formulation of the plan.[1] Those assessments had been conducted by appropriately qualified persons in terms of the Disability Services Act 2006.
[1]Adaptive Behaviour Assessment System (ABAS-11), Behaviour Rating Inventory of Executive Function – Adult (BRIEF-A), Functional Communication Assessment.
The plan identified that GAS required multiple opportunities each day to use large muscles of his body such as freedom to run or pursue active sports. Otherwise he would be likely to engage in pacing behaviour which was identified as often leading to physiological arousal and aggressive behaviours. The plan was predicated on the ability of carers effectively to offer daily community access to GAS.
The plan revealed that from 2010 to 2012 a clear and steady decline had been established in the number of recorded incidents involving aggressive behaviour and self injurious behaviour. However the plan also revealed that recorded incidents for the first three months of 2013 contained quite alarming information. There was a marked increase in the frequency of incidents (from 2.7 per month in 2012 to 16.6 per month in 2013) and the duration of incidents increased from 29.3 minutes in 2012 to 33 minutes in 2013. One incident in March 2013 was particularly violent and required four carers to bring GAS under control using physical restraint. The increase was explained in the plan by a significant change in community access available to GAS.
The Tribunal was told that community access effectively ceased at the end of December 2012. The vehicle used to transport GAS was no longer roadworthy due to damage that he had inflicted on that vehicle. Instead of daily community access out of his home, he had only been involved in activities outside his home on four occasions over three months. There was evidence that GAS’s family and his doctor had sought assistance from UnitingCare Community and the Department to source another vehicle so daily community access could resume. Nothing had come of these pleas.
Instead, there had been a focus on increasing the time that his carers spent inside the house with GAS. Carers would only go into his area of the house two at a time as it was unsafe for a single carer to be alone with GAS. This new strategy was tolerated for short periods of time by GAS before he would inevitably become agitated giving cues for the carers to leave. There were more incidents recorded in 2013 because his carers were physically close to GAS in his house more frequently in 2013 than they had been in the previous year.
Disturbingly his doctor reported that GAS was displaying signs of depression which was associated with the cessation of daily community access. When retreating into depressive behaviour, GAS would be at an increased risk of self harm.
The plan incorporated the use of containment, seclusion, physical restraint, chemical restraint and restriction of access to a range of objects. GAS is contained at all times when he was at home. He is always secluded for a period of 13 hours straight from 7pm to 8am each day and then up to a maximum of 8 hours during the day in the period from 8am to 7pm.
Seclusion for a maximum total daily period of 21 hours in any 24 hour period reflects the severity of the behaviours of GAS. However the plan anticipated that the average daily period of seclusion would be closer to 18 hours taking into account daily community access when GAS would not be secluded. With the effective cessation of community access from late December 2012, the time in seclusion would tend towards the maximum limit rather than the anticipated 18 hours per day.
The Tribunal members informed the care provider and the Department that it was not possible to approve seclusion in accordance with the plan dated 8 April 2013 because the plan was expressly based on daily community access and that level of community access had ceased in December 2012. Based on the information in the partially outdated plan of 8 April 2013, the Tribunal was not satisfied that approving seclusion for what would likely be consistently 21 hours a day was the least restrictive option. The plan should be amended to remove reliance on daily community access until such time as a vehicle becomes available for GAS’s use. In that way, approval of seclusion could be considered in accordance with a plan that reflects the current reality and not some outdated practice.
The Tribunal had been told at the hearing on 26 April 2013 that funding had just been approved for the purchase of a vehicle by the Department. It was anticipated that it would take three months to access the funding, purchase a vehicle and then modify the vehicle to render it safe and effective for the use of GAS. In the meantime, a departmental vehicle would be made available for the use of GAS on a weekly basis. The positive strategies in the plan could be modified to reflect a temporary change from daily community access to weekly.
The Tribunal indicated that it would be prepared to approve seclusion if an addendum were to be added to the plan to reflect the current reality that community access would not be available to GAS on a daily basis due to the unavailability of a vehicle to take him into the community. The addendum would have to set out clear plans for sourcing another vehicle and any temporary measures in the short term. The Tribunal would then consider approving seclusion in accordance with the revised plan and addendum.
A revised plan containing an addendum was filed in the Tribunal dated 29 April 2013. It was recognised in the addendum that a key component in the plan is daily access to the community and for that access to be implemented successfully, GAS’s care provider needs access to a suitable secure vehicle. The addendum recites that funding for a vehicle will be available by the end of May 2013, modifications will be carried out in June 2013 and the vehicle will be ready for use by 3 July 2013. In the interim, the Department made a commitment to make a departmental vehicle available on a planned schedule allowing outings for three hours on a once a week basis by GAS.
The Tribunal is now satisfied that the Positive Behaviour Support Plan dated 29 April 2013 sets out a range of realistic positive strategies to respond effectively to GAS’s behaviour as well as a range of reactive strategies and restrictive practices. That plan is in accordance with the requirements of the Disability Services Act 2006 and contains adequate provisions for monitoring the performance of the plan over time.
The Tribunal was satisfied from the assessments provided to the Tribunal and from the evidence of his doctor that GAS does not understand the nature and effect of decisions about the use of restrictive practices. The Tribunal was satisfied that a need had been established on the evidence for GAS to be subject to containment, seclusion, physical restraint, chemical restraint and restricted access to objects because of the harm caused by his behaviours. The Tribunal was satisfied that implementing all those restrictive strategies in accordance with the revised plan is the least restrictive way of ensuring his safety and the safety of others.
The Tribunal was satisfied that the revised plan will provide a platform for a gradual reduction in harmful behaviour and an improvement in GAS’s quality of life.
However it is concerning that significant restrictions on GAS’s liberty for up to 21 hours a day are being implemented to respond to his aggressive and at times self injurious behaviour. He cannot inform the Tribunal directly about his views about these restrictions and the Tribunal has had to make decisions based on what it considers to be his interests. It would be appropriate for a representative to be appointed to provide a further avenue for information about GAS’s interests to be made available to the Tribunal, unrelated to his service providers or the funding organisation of those services.
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