HRJ

[2011] QCAT 712

CITATION: HRJ [2011] QCAT 712

PARTIES: HRJ

APPLICATION NUMBER:   GAA3281-11 / GAA3282-11 / GAA3283-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 2 June 2011

HEARD AT: Brisbane

DECISION OF: Professor A Ashman, Member
William LeMass, Member

DELIVERED ON: 2 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    The order made by the Tribunal on 11 June 2010 approving restrictive practices in relation to HRJ is changed by approving:

(a)  The accommodation service containing and secluding HRJ in accordance with the Positive Behaviour Support Plan dated 2 June 2011 subject to any changes notified by the Chief Executive, Department of Communities (Disability Services).

2.    The order made by the Tribunal on 11 June 2010 approving restrictive practices in relation to HRJ is changed by approving the accommodation service using the following restrictive practices in relation to HRJ in accordance with the Positive Behaviour Support Plan dated 2 June 2011 subject to any changes notified by the Chief Executive, Department of Communities (Disability Services):

(a)  Chemical restraint;

(b)  Restricting access.

3.    Unless the Tribunal orders otherwise, this approval remains current until 30 September 2011.

CATCHWORDS: Review of Approval of Containment – Review of Approval of Seclusion – Review of Another Restrictive Practice

APPEARANCES and REPRESENTATION (if any):

HOM	mother
TD and KKA	advocates
CLI	friend
FLV, CJA, SC, and HDA	accommodation providers
PMI, MRE, DMI, and CBR	staff of a disability service
BTH	representing the disability service
RST	observer
MSH	guardian

REASONS FOR DECISION

1. On 11 June 2010 the Queensland Civil and Administrative Tribunal gave approval for an accommodation service to use a number of restrictive practices as a last resort when HRJ was displaying serious challenging behaviour.  These included containment, seclusion, chemical and physical restraint, and restricting HRJ’s access to objects as outlined in the Positive Behaviour Support Plan dated 11 June 2010.

2. The matters before the Tribunal have come about due to the approaching expiry of the Tribunal’s June 2010 orders.

3. The Tribunal undertakes a review of containment and seclusion approvals in accordance with ss 80ZA and 80ZB of the Guardianship and Administration Act 2000 that requires the Tribunal to revoke its approval unless it is satisfied that it would give such an approval if a new application for the approval of restrictive practices were made.  The Tribunal, therefore, first considered the requirements set out in s 80V of that Act.

4. In a report to the Guardianship and Administration Tribunal dated 2 May 2008, Dr L stated that HRJ has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Post Traumatic Stress Syndrome, Reactive Attachment Disorder, and Intellectual Impairment.  Dr L made reference to a neuropsychology report dated 31 August 2002 in which HRJ’s IQ could not be ascertained due to his very low ability.  However, a Senior Guidance Officer had assessed HRJ in 2001 and gave an IQ score of 40 points.  Dr L wrote that HRJ experienced receptive and expressive language difficulties and was only able to make simple decisions in lifestyle/accommodation choices.

5. In a report to the Guardianship and Administration Tribunal dated 15 April 2009, psychologist Mr E, wrote that HRJ had only a simple understanding of decision-making processes in areas of choice related to his personal health care, lifestyle and accommodation, and financial matters.  Mr E stated that the use of restrictive practices were warranted due to HRJ’s physical aggression and limited understanding of the consequences of his challenging behaviours.

6. Documents before the Tribunal prior to the hearing of 11 June 2010 included an extensive Positive Behaviour Support Plan dated 14 May 2010.  In that document, a 2009 intelligence assessment was cited that gave a full-scale IQ of 50 points, indicating severe impairment.  Evidence was also provided of HRJ causing serious self-harm and harm to others in the form of aggression toward staff and members of the public.  The Plan also outlined an extensive assessment by appropriately qualified staff in regard to HRJ’s behaviour, living circumstances at that time, and views about ways in which the risk of harm to himself and others would be reduced through the use of restrictive practice identified in paragraph (1) above.  Observation and monitoring procedures were also outlined in the Plan.

7. On 2 June 2011, the Tribunal found that all requirements of s 80V had been satisfied.  Oral evidence from those attending the hearing confirmed that there had been no positive changes in HRJ’s intellectual and decision-making capabilities since the previous Tribunal hearing.

8. The Tribunal, therefore, progressed to consider if it would give approval for containment and/or seclusion (and any other restrictive practice) if a new application for approval were made.

9. The Tribunal had before it a Containment and Seclusion Report dated 1 June 2011 that gave an update of HRJ’s circumstances and behavioural status.  It is evident from that report that HRJ continues to display self-harming and aggressive behaviour toward others, with a peak in verbal aggression, self-injurious behaviour, and property destruction occurring in March and April 2011.

[10]  The Report indicates that HRJ is contained for approximately 20 hours each weekday and 24 hours on Saturdays and Sundays due to skill deficits in regard to his safety if he were to exit the accommodation premises alone.

[11]  Statements are also made in the Report that approved seclusion had occurred 30 times during the period 1 June 2010 and 30 April 2011 up to the maximum amount of time in seclusion.  The author of the Report notes that seclusion, when used in accordance with the approved Plan, is considered to be the only effective option to ensure the safety of support staff and to affect a rapid reduction in HRJ’s agitated state.  Approved seclusion in accordance with the Plan refers to a maximum of two hours per day.

[12]  Of considerable concern to the Tribunal, however, are additional statements that the accommodation service applies an “organisational seclusion” between 7pm and 7am as a default due to staffing issues.  In other words, HRJ is locked in his room alone overnight, with no physical access to staff.

[13]  The procedure of secluding HRJ at night is completely outside the approval given by the Tribunal on 11 June 2010 in accordance with the Plan available to the Tribunal at that time, and it is in contravention of the Guardianship and Administration Act 2000 and the Disability Services Act 2006.

[14]  It is particularly worrying to the Tribunal that this level of seclusion has been applied since the beginning of 2011.  A letter is on the Tribunal’s file from Mr DS dated 24 December 2010 indicating that HRJ had moved to his present home and that the Plan would require amendments due to changes of environment and co-tenancy arrangements.  The changes stated were restricted access to outside of the property grounds due to skill deficit.  It was also stated that HRJ would not have a night shift worker in his unit and that an amended Plan would be provided to the Tribunal by the end of January 2011.

[15]  No amended plan was received by the Tribunal prior to the hearing.

[16]  On 8 April 2011, the Tribunal received a letter from HRJ’s guardian.  In that letter, the author stated, “it is my understanding that his [HRJ’s] disability support service is using containment and seclusion for 16 hours per day which is in excess of the current PBSP’s approved 2 hours (maximum) per day.”  The author continues that this was drawn to her attention on 6 April 2011 by two of the accommodation provider’s managers and that this situation would continue for at least another month until modifications were made to HRJ’s residence.

[17]  Oral evidence given by staff of the accommodation provider, by clinical staff, and from HRJ’s guardian confirmed that HRJ has been secluded for up to 16 hours a day since January 2011.

[18]  The guardian, the clinical staff, and the legal representative of the disability service stated that they do not support the current use of seclusion.

[19] Division 3 Subdivision 3 of the Disability Services Act 2006 states that the Chief Executive must decide whether a change to an adult’s positive behaviour support plan should be made if a relevant service provider asks the Chief Executive, in writing, to make a change to the plan.  An application to the Tribunal is required if the changes are inconsistent with the terms of the existing containment and seclusion approval.

[20]  No explanation was given by the guardian, the accommodation provider, or the clinicians as to why the procedures given in the Disability Services Act 2006 were not followed.

[21]  Neither the guardian, nor the accommodation provider, nor any clinical staff appears to have initiated actions that would bring an application for a review of the approval of the use of restrictive practices to the Tribunal.  All have known about, and have implicitly condoned, seclusion practices that are outside of the law for over five months.  This is totally inexcusable.

[22] The Tribunal is fully cognizant of s 8 of the Disability Services Act 2006.  Reliance on that section provides no relief to a service that operates outside of the law.  A review of the matter could have been heard by the Tribunal, the existing Plan amended to accommodate any necessary changes in the use of restrictive practices, and consideration given by the Tribunal in regard to an appropriate approval in accordance with those needs.

[23]  Under the circumstance, the Tribunal issues the most severe reprimand possible to all parties who were aware that seclusion was being employed outside of the provisions of the Plan dated 11 June 2010, and who failed to bring the matter to the Tribunal’s attention.

[24] In accordance with s 80ZB of the Guardianship and Administration Act 2000 the Tribunal then turned its attention to the need for the use of restrictive practices and in doing so, to s 80V(2)(f).  Specifically, that subsection refers to the capacity of the Plan under consideration to reduce or eliminate the risk of the adult’s behaviour causing harm, and achieve an improvement in the adult’s quality of life in the long-term.  Toward this end, the Tribunal sought such indications from the parties present.

[25]  Staff of the accommodation provider outlined a number of positive changes in HRJ’s circumstances since the previous Tribunal hearing.  These include: the purchase of a modified vehicle that has allowed HRJ greater access to the broader community (four hours per day over five days); re-connection of HRJ with his brother who visits every second Tuesday; the complete withdrawal of any form of physical restraint with the last use of this restrictive practice occurring in June 2010; gains in HRJ’s level of language functioning and in choice-making.  Many of these advances have paralleled positive relationships between HRJ and his residential care workers.

[26]  In terms of the need for the use of restrictive practices, evidence was provided to the Tribunal concerning the use of containment.  HRJ has a skills deficit in regard to road safety, but there have also been occasions when his behaviour escalates and there is a risk that he might leave the premises and pose a threat to the general public.  Containment is a default practice to limit his leaving the premises without support.

[27]  Seclusion has been, and continues to be, necessary when HRJ’s behaviour escalates to a point where he puts the safety and welfare of his co-tenants and staff at risk.  Plans have been made to undertake building work to inhibit HRJ’s access to the private area of one of his co-tenants.  Once these works are complete, HRJ will have use of a communal yard.  Funding has also been approved to increase the number of staff on duty at night so that both HRJ and his co-tenants will be individually supported, thereby eliminating the current unapproved practice of locking HRJ in his bedroom suite between 7pm and 7am.

[28]  HRJ currently receives fixed dose and pro re nata (PRN) chemical restraint and these medications are monitored by his treating medical team.  The most recent review was undertaken by Dr C on 26 May 2011.  The Containment and Seclusion Report of 1 June 2011 indicates that HRJ received PRN medication on 21 occasions between 1 June 2010 and 30 April 2011.  Dr C has indicated that a gradual reduction in current fixed dose medication is planned, although this has not yet been initiated.

[29]  Oral evidence indicates that there is no longer a need to use physical restraint as other positive and restrictive strategies are used when HRJ begins to show signs of stress.

[30]  HRJ’s access to objects and areas has been restricted since moving to his current residence.  He does not have free access to the staff area, the communal kitchen, laundry, front garden, driveway, and to food held in the cupboards in the kitchenette in his suite.  These areas have remained secure due to staff concerns that HRJ will locate and use various items as weapons.  When some adjustments are made to these areas, it is anticipated that he will gain supported access to communal areas for meal preparation.

[31]  HRJ’s residential circumstances are far less than ideal due to the high level of restrictions to which he is subject.  A written submission from a representative of an advocacy group, dated 1 June 2011, argued that HRJ’s circumstances have not facilitated improvements in his life and lifestyle.  In the converse, the use of restrictive practices has promoted a culture of restriction and promoted his isolation and boredom.

[32]  HRJ’s mother spoke to the Tribunal about feelings of disenfranchisement from the decision-making process about her son despite her willingness to be party to that process.  The guardian also spoke about the difficulties that she encountered in fulfilling the role of guardian for which she was appointed on 20 January 2010.  On that date the guardian was appointed for decisions about accommodation, health care, provision of services, and legal matters not relating to the adult’s financial or property matters.

[33]  It was conceded by HRJ’s mother and the guardian that communication between the stakeholders had improved somewhat over the past few months and CJA and CBR stated that the relationships between stakeholders were settling although there remains a need to put better communication strategies in place.

[34]  Communication and consultation are essential to proper decision-making about HRJ’s current and future requirements.  It is agreed that there is a need for the imposition of some limitations due to his volatility and aggression.  In other words, containment and seclusion have a place in HRJ’s residential and community support plan at this stage as does the use of chemical restraint and the restriction of his access to objects and areas.

[35]  The Tribunal finds that the restrictions that affect HRJ are at least in some part associated with the physical vulnerability of his co-tenants.  This suggests that his residential situation is currently inappropriate and this condition might have led to the unapproved use of seclusion for more than two hours per day as described in the existing Plan.  As indicated above, this is no justification whatsoever for the failure of stakeholders to seek a review of the existing approvals.

[36]  The existing Plan that was the basis of the previous Tribunal approvals is unacceptable and cannot form the basis for a further approval at this time.

[37]  BTH proposed a number of changes to that Plan anticipating structural modifications to the residence and the employment of an addition staff member during the night time hours.  He proposed approval for a two-phase use of seclusion.  Starting immediately, seclusion would be used in accordance with the existing Plan (i.e., two hours per day) plus an additional 12 hours of seclusion from 7pm to 7am until 24 June 2011.  Following that date, the use of seclusion will revert to the approved two hours per day.

[38]  There is also an amendment to the limitations to HRJ’s access to objects and spaces.  He would have no access to the kitchen unsupported but would have supervised access when the resident of Bedroom 1 is not present in the house.  He will also have supervised and supported access to the laundry when the resident of Bedroom 1 is not present in the house.

[39]  The proposed amendments to the Plan are acceptable in the short-term.

[40]  The Tribunal, therefore, will approve the use of restrictive practices in relation to HRJ by approving seclusion in accordance with the amended Positive Behaviour Support Plan, subject to any changes notified by the Chief Executive, Department of Communities (Disabilities).

[41]  The Tribunal will also approve the use of chemical restraint and restrictions to HRJ’s access to objects and areas in accordance with the amended Positive Behaviour Support Plan, subject to any changes notified by the Chief Executive, Department of Communities (Disabilities).

[42]  Unless the Tribunal orders otherwise, this approval remains current until 30 September 2011.