GLJ

[2010] QCAT 436

CITATION: GLJ [2010] QCAT 436

PARTIES: GLJ

APPLICATION NUMBER:   GAA6296-10

MATTER TYPE: Guardianship and administration matters

HEARING DATE:     2 September 2010

HEARD AT:  Brisbane

DECISION OF: Mr Ron Joachim

DELIVERED ON: 3 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE: That the appointment of the Adult Guardian as guardian for restrictive practices (general) is revoked

CATCHWORDS :  Restrictive practices, mechanical restraint, self injurious behaviours, helmet used to prevent injury, helmet not a mechanical restraint

APPEARANCES and REPRESENTATION (if any):

NIL

REASONS FOR DECISION

1. This is a hearing of the Queensland Civil and Administrative Tribunal regarding GLJ.  On the 3^rd of September 2009 the then Guardianship and Administration Tribunal made orders appointing GLJ’s parents as guardians for a period of two (2) years.  At the same time the Tribunal continued the appointment of The Public Trustee as administrator for GLJ and appointed the Adult Guardian as guardian to make decisions in relation to restrictive practices.  It is this latter order that is being reviewed today on the 2^nd of September 2010 in Brisbane.

1. The review is being conducted on the basis of the basis of the information on the Tribunal file.  There are no parties present.  When the Tribunal conducts a review of the appointment of a guardian for restrictive practices it does so under section 31 of The Guardianship and Administration Act 2000.  It also needs to take into account the provisions of chapter 5B, but particularly section 80ZD of The Guardianship and Administration Act. 

1. The first matter that the Tribunal needs to be satisfied about is whether GLJ continues to lack capacity for decision-making for restrictive practices.  The material before the Tribunal indicates that she has a severe intellectual disability and is unable to understand information on which to make any decisions.  The Tribunal notes the previous decision of the Tribunal in this regard and has, as a result of the evidence before it, decided that GLJ continues to lack capacity to make decisions about restrictive practices.

1. The next issue to be decided by the Tribunal is whether there is a need to appoint a guardian.  The Tribunal can appoint a guardian under section 80(z)(d) of The Guardianship and Administration Act 2000.  It did so in September 2009 when the Adult Guardian was appointed.  At that time the Tribunal had a draft plan which had been submitted, outlining positive practices which would be used in conjunction with the restrictive practices of chemical restraint and mechanical restraint.  At that time GLJ was receiving medication to control her behaviours and her aggression and mechanical restraint by use of a helmet was required during times of self-injurious behaviour.

1. The Tribunal received a report from the Adult Guardian indicating that GLJ is subject to mechanical restraint, being the wearing of a helmet to prevent her from causing harm to herself with head banging the walls and floors of her residence in Townsville.  GLJ receives support from the Department of Communities, Accommodation Support and Respite Services on a 24 hour basis.  The report from the Adult Guardian indicated that chemical restraint was no longer required.  A draft positive behaviour support plan was received by the Adult Guardian on 24 December 2009.  The Adult Guardian provided feedback on this plan on 29 July 2010. 

1. The Adult Guardian was advised by Mr M, Service Manager, that whilst there had been an absence of behaviour over the past 11 months it was considered that it would be necessary to implement mechanical restraint again in case GLJ commenced her self-injurious behaviours.  The Tribunal also had the benefit of a letter from Mr M in which he indicated that the new plan being developed after the feedback had been submitted to the Adult Guardian on 20 August 2010.  This plan included the removal of chemical restraint due to medication no longer being required. 

1. The only form of restrictive practice proposed to be used with GLJ is said to be mechanical restraint.  This consists of the use of a helmet which is placed on GLJ’s head when she is head banging.  This helmet is used to prevent injury.  It is not used to prevent GLJ from banging her head.  It is pertinent at this point to note the definition of mechanical restraint under the Disability Services Act 2006. This definition is contained in section 123(h) of the Disability Services Act which states as follows:

“Mechanical restraint of an adult with an intellectual or cognitive disability means the use for the primary purpose of controlling the adult’s behaviour with a device to:

a)    restrict the free movement of an adult; or

b)    prevent or reduce self-injurious behaviours.”

1. Subsection 2 goes on to list what are not mechanical restraints and it is worth noting that using a device to prevent injury from involuntary body movements such as seizures is not a mechanical restraint.  The Tribunal will focus on the definition of mechanical restraint.  It is to be used for the primary purpose of controlling the adult’s behaviour.  The Tribunal does not consider the use of a helmet controls GLJ’s behaviour.  There is no evidence before it in the plan or in the Adult Guardian’s report that this is the case.  The helmet is used primarily to prevent injury to GLJ as a result of her head banging behaviour.  In my view this does not constitute the use of a device to control GLJ’s behaviour. 

1. Under these circumstances the use of a helmet cannot be regarded as mechanical restraint.  Its continued use if necessary, does not require the approval of a guardian for restrictive practice.  In making this decision the Tribunal is not saying that the helmet cannot be used if GLJ’s head banging reaches a point where it is necessary to protect her from harm.  The Tribunal is simply saying that the use of the equipment is not mechanical restraint which requires a guardian’s approval.  Under these circumstances there is no need for a decision about a restrictive practice under section 80ZD(1)(c) and therefore, because there is no need for a decision the appointment of the Adult Guardian as guardian for restrictive practices (general) for GLJ is revoked.