HRJ

[2010] QCAT 38

CITATION:      HRJ [2010] QCAT 38

PARTIES:   HRJ

APPLICATION NUMBERS:         GAA4699-09, GAA4700-09, GAA4701-09, GAA7501-09, GAA10474-09, GAA225-10,   GAA226-10

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   20 January 2010

HEARD AT:   Brisbane

DECISION OF:   J Casey, L Clarkson

DELIVERED ON:   20 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Guardianship order changed, appointment of administrator continued, application for the approval of containment, seclusion and other restrictive practices adjourned

CATCHWORDS:  Review of appointment of guardian, review of appointment of administrator, presumption of capacity rebutted, application for the approval of containment, seclusion and other restrictive practices

APPEARANCES and REPRESENTATION (if any):

Active parties who appeared at the hearing were HO, Dr Jonathon Mason from Special Response Service team, Department of Communities – Disability Services, Tara Kent and Shannon Redfern from the Office of the Adult Guardian and Alan Albury from The Public Trustee of Queensland.   Interested parties were Andrew Wood, a clinician from the Special Response Service team, Kathryn Ellston, manager, Department of Communities – Disability Services, Chris Town, acting service manager, Department of Communities – Disability Services, CJ from a service provider, MA and JL supporting HO and Tim Jordan from the Community Visitor Program.   Thomas Busby, solicitor, was granted leave to represent the Department of Communities – Disability Services. 

HISTORY OF THE APPLICATION

[1]HRJ is a 19 year old man who is receives full support from Department of Communities - Disability Services Accommodation and Respite Services and community access support from a service provider.

[2]On 23 September 2008 the Tribunal appointed the Adult Guardian as guardian for HRJ for accommodation, provision of services and seeking help for, or making representations in relation to Disability Services Queensland, and HO (HRJ’s mother) as guardian for decisions about health care matters.  Both appointments were for a period of two years.  On the same day the Tribunal continued the appointment of The Public Trustee of Queensland as administrator for all financial matters until further order of the Tribunal.

[3]The Tribunal received an application from Michelle Herrmann of Department of Communities – Legal Services on 28 July 2009 for the approval of containment, seclusion and other restrictive practices to which HRJ was being subjected.

[4]Under an interim order dated 9 November 2009 the Tribunal appointed the Adult Guardian as guardian for HRJ to make decisions about legal matters not relating to his financial or property matters for a period of three months or until the date of any further order that the Tribunal may make, whichever was the sooner.

[5]On 23 December 2009 the Tribunal received a further application from HO proposing her appointment as guardian for HRJ for personal matters additional to health care, (including accommodation, provision of services and legal matters).  In her amended application received by the Tribunal on 11 January 2010 HO advised the Tribunal that she was also applying to become administrator for HRJ.

THE ISSUES AND THE LEGISLATION

[6]The relevant legislation includes sections 12,14(2), 15, 16, 31, 80V, 80W, 80X, and Schedule 4 of the Guardianship and Administration Act 2000, and section 123 of the Disability Services At 2006.  .

[7]Capacity is defined in Schedule 4 of the Guardianship and Administration Act 2000 (the Act) as follows:

“capacity” for a person for a matter, means the person is capable of –

(a)understanding the nature and effect of decisions about the matter; and

(b)freely & voluntarily making decisions about the matter; and

(c)communicating the decisions in some way.

[8]S80W outlines the matters the Tribunal must consider in response to an application for containment and/or seclusion, while s80V provides the conditions under which the Tribunal may approve the use of containment or seclusion.

[9]The effect of s123D is to empower relevant service providers to contain and/or seclude the adult, and carry out other restrictive practices, provided the service providers are acting in accordance with the positive behaviour support plan that has been approved by the Tribunal.

[10]When considering the appointment of a guardian or an administrator, the Tribunal must be satisfied, not only as to the need for appointment as set out in s12 of the Act, but also as to the appropriateness of a proposed appointee as set out in ss 14, 15 and 16 of the Act.

[11]When conducting a review of the appointment of a guardian or administrator, the Tribunal must take into account s31 of the Act that provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.  The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.

[12]In accordance with the above legislative requirements the issues for the Tribunal are the following:

1. Does HRJ have capacity to make decisions about personal and financial matters and the use

of restrictive practices?

2. Have the requirements of s80V been satisfied with respect to the Tribunal approving containment and

seclusion for HRJ?

3. Is there a need for the appointment of a guardian?

4. If so, who should be appointed?

5. Is there a need for the appointment of an administrator?

6. If so, who should be appointed?

THE EVIDENCE

[15]In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views.  These views, where specifically relied upon by the Tribunal, are discussed below.

DOES HRJ HAVE CAPACITY FOR THE MATTERS?

[16]The Tribunal received a report dated 1 April 2009 from Cameron Elsworthy, a psychologist, stating that HRJ has an intellectual disability and autism spectrum disorder, and that HRJ’s current medications, including cataprens, endep and zyprexa, were not being used primarily to control behaviour.  Mr Elsworthy did, however, submit that the adult was subject to the restricted practices of seclusion and restricted access to objects and he believed these restrictions were appropriate due to HRJ’s history of physical aggression and property destruction.  Mr Elsworthy submitted that HRJ was unable to make financial decisions, but could however make simple (not complex) decisions regarding personal health care, lifestyle/accommodation choices and the use of restrictive practices.

[17]The Positive Behaviour Support Plan dated 26 October 2009 cited a number of diagnoses that are included in HRJ’s history.  These are:

• Moderate mental retardation

• Autism spectrum disorder

• Post traumatic stress disorder

• Attention deficit-hyperactivity disorder

• Reactive attachment disorder

[18]The results of the assessment carried out by Andrew Wood, a psychologist, were outlined in the positive behaviour support plan dated 26 November 2009.   In the report Andrew Wood stated that HRJ’s general cognitive ability and verbal reasoning skills are severely impaired and that HRJ requires support to overcome his challenges in cognitive functioning.   In his oral evidence Andrew Wood submitted that, based on the assessment results, HRJ’s decision making for simple and complex matters is impaired. 

[19]At the hearing Dr Jonathan Mason supported Andrew Wood’s submission.

[20]Evidence submitted previously to the Tribunal included a report dated 2 May 2008 prepared by Debbie Lucas, a psychologist.  In her report Debbie Lucas identified that HRJ has had an intellectual impairment since childhood, and that his significant impairments in receptive and expressive communication skills directly affected his planning and problem solving.   Ms Lucas expressed her view that the adult did not have capacity for complex health, lifestyle or financial decisions or simple health and financial decisions, but could make simple lifestyle decisions.

[21]The views of all parties attending the hearing were that HRJ had significant disabilities and required high levels of support and assistance with decision making in all areas of his life.

CONCLUSION

[22]The Tribunal concluded that HRJ has a number of medical conditions including autism spectrum disorder and intellectual disability since birth and that he has always needed significant support in all aspects of his life and decision making.

[23]The Tribunal found the presumption of capacity contained in Principle One of Schedule 1 of the Act has been rebutted in relation to HRJ’s ability to make decisions about personal and financial matters and about the use of restrictive practices.

HAVE THE REQUIREMENTS OF S80V BEEN SATISFIED WITH RESPECT TO THE TRIBUNAL APPROVING CONTAINMENT AND SECLUSION FOR HRJ?

[24]The Tribunal heard evidence from Disability Services staff that HRJ’s behaviours have resulted in harm to himself and others. HRJ has engaged in behaviours which have included repeatedly hitting himself on the head along with acts of physical aggression towards co-tenants, staff members and members of the public. HRJ has a history of property damage and using objects as projectiles. The Tribunal was satisfied that the adult’s behaviour has caused harm to himself and others, as defined in s123E of the Disability Services Act 2006.

[25]The Positive Behaviour Support Plan (PBSP) of 26 October 2009 outlined HRJ’s challenging behaviours and the procedures to be used by staff to respond to such behaviours.  The Plan indicates that HRJ is currently subjected to the restrictive practices of containment, seclusion, chemical restraint and restricted access to objects.  In a report based on a visit to HRJ’s accommodation facility on 21 December 2009 the Community Visitor also cited physical restraint as a restrictive practice to which HRJ was subjected.   Physical restraint was not included in the PBSP.

[26]These restrictive practices, when compliant with the PSBP, require the approval of Tribunal, and in the absence of such approval (or the appointment of a guardian for a restrictive practice matter), the legislative provisions outlining the circumstances in which relevant service providers may use restrictive practices will not be satisfied. 

[27]The Tribunal heard evidence from staff from Department of Communities – Disability Services and the delegates of the Office of the Adult Guardian that HRJ has been charged with serious assault pertaining to an incident that occurred during community access on 9 November 2009 and that he has been re-located to a Department of Communities accommodation in a southern suburb where, in accordance with his bail conditions, he is not permitted to access the community. He is not able to attend medical appointments or psychological counselling.  There have been changes to his medication regime.  Due to the change in accommodation, the staff, services and equipment outlined in the PBSP are not as available in his current accommodation.  The key worker system and communication strategies developed in the PBSP cannot be implemented under present circumstances, and the visits by family members are less frequent due to transport difficulties.  Department of Communities staff advised the Tribunal that an updated positive behaviour support plan was being developed to respond, in the least restrictive way, to HRJ’s challenging behaviours at his new accommodation, given the current resources available to him.  The plan is based upon the multi-disciplinary assessment that has been carried out previously on 17 August 2009.

[28]The Tribunal heard submissions by Mr Busby and members of the SRS team seeking to adjourn the matters pertaining to restrictive practices (i.e. application for approval of containment, seclusion, chemical restraint and restricted access to objects) as the positive behaviour strategies outlined in the PBSP are not able to be carried out at the present time and that HRJ’s daily living circumstances, including the restrictive practices and the positive behaviour strategies to manage his challenging behaviours are at great variance to those described in the PSBP.  The Tribunal was informed that staff from Legal Aid Queensland are currently arranging for HRJ’s bail conditions to be varied in order for him to be able to regain access the community.  Plans are in place for HRJ’s relocation to another suburb to the facility provided by another service provider.  It is envisaged this relocation process may take up to two months.  Accordingly, Department of Communities – Disability Services have requested the hearing for restrictive practice matters be adjourned for a period of at least two months.

CONCLUSION

[29]The Tribunal considered the submissions and referred to ss 80V & 80W of the Act and ss 123M(2) and s123D(2)(c) (ii) and (iii) of the Disability Services Act 2000.

[30]While HRJ has impaired capacity for making decisions about the use of restrictive practices, and he has undergone a multi-disciplinary assessment by appropriately qualified persons, it is clear that he is being contained, secluded and subjected to other restrictive practices in a manner that is non-compliant with the positive behaviour support plan before the Tribunal.   The Tribunal determined that as the provisions of s 80V2(C)of the Act have not been satisfied the Tribunal is not able to consider the applications pertaining to the approval of containment, seclusion and other restrictive practices at the present time.

[31]The Tribunal adjourned the following matters to a date to be fixed:

• Application for approval of containment

• Application for approval of seclusion

• Application for approval of another restrictive practice

[32]The remaining scheduled matters were heard by the Tribunal.

IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?

[33]The Tribunal heard evidence regarding a number of urgent issues in the adult’s life.  Firstly, HRJ had been recently relocated to emergency, temporary accommodation where he receives 24 hour support.  He will continue to require a guardian to make  decisions regarding suitable and permanent accommodation along with associated provision of services.

[34]There were a number of health issues that were of concern.  HRJ’s medical history includes the diagnosis of a range of disorders requiring review and appropriate treatment.  He also is in need of a medication review as he is being prescribed a number of medications, some with significant side-effects and contra-indications.  HRJ continues to require a guardian to make decisions about health care matters, including consent to medication that is not prescribed to control behaviour.

[35]HRJ is currently facing charges of serious assault and will require a guardian for legal matters not relating to financial or property matters.

[36]All parties agreed that there were imminent and complex decisions that necessitated the formal appointment of a guardian in relation to accommodation, the provision of services, health care and legal matters.

CONCLUSION

[37]The Tribunal determines that the provisions of s 12 of the Act  apply and that the need for the appointment of a guardian for HRJ has been established.

IF SO, WHO SHOULD BE APPOINTED?

[38]The options for appointment were the Adult Guardian or HO.

[39]In a report to the Tribunal dated 15 January 2010 the Adult Guardian raised concerns relating to HO as the appointed guardian for health matters stating “she may not currently possess knowledge of the health needs for HRJ” and that “health providers had difficulty gaining consent for health matters and for other stakeholders to discuss health issues with the appointed guardian”.   At the hearing the delegate of the Office of the Adult Guardian submitted that initiating contact with HO has been difficult for all stakeholders as she does not own a telephone and is to be contacted by mail.  Attempts at contacting HO by calling her friend’s phone have not been successful.

[40]In her oral evidence HO expressed disappointment that during the period under review she had not been consulted by the Adult before the guardian made decisions.  With regard her own decisions as guardian for HRJ for health matters, HO informed the Tribunal that she was not aware of all the changes to HRJ’s medication during the review period, nor was she able to provide details of HRJ’s current medication regime.  HO did not know who, or indeed if anyone, provided consent to the service providers to administer the adult’s current medications.   HO further advised the Tribunal that she had declined to provide consent for the adult to attend an appointment with Dr Paul White, psychiatrist, after an appointment was initiated by the Adult Guardian during a period where HRJ’s challenging behaviours were increasing in intensity, frequency and duration.

[41]The continuation of the Adult Guardian’s appointment is strongly supported by the service provider and members of the SRS team, who described their experience with the Office of the Adult Guardian as “helpful and positive” while submitting that HO has been difficult to contact. They advocated that HRJ is at a critical period in his life and requires a skilled guardian who is aware of all the complex issues and is able to be contacted for urgent decisions.

[42]The Tribunal acknowledges that while HO is actively involved in the adult’s life and is committed to the his best interests she did not provide evidence to the Tribunal that she understood the relevant complex issues pertaining to the adult, or that she was more appropriate for appointment.

[43]The Tribunal notes that the steps taken to date by the Adult Guardian have been appropriate and that the guardian has acted in accordance with the General Principles and has exhibited competence in its role as guardian to date.

CONCLUSION

[44]The Tribunal is also of the view that a knowledgeable, experienced and available guardian would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s complex needs. 

[45]The Tribunal concluded, pursuant to s 31(4)(a) & (b) of the Act , that the Adult Guardian has acted competently and that no other person has been shown to be more appropriate for appointment at this time.

[46]Accordingly, the Tribunal changed the guardianship order made on 23 September 2008 by appointing the Adult Guardian as guardian for HRJ to make decisions about the following personal matters:

• Accommodation

• Provision of services

• Health care

• Legal matters not relating to the adult’s financial or property matters

[47]Unless the Tribunal orders otherwise, this appointment remains current for a period of five years.

[48]The Tribunal anticipates that all parties will continue their efforts to act in HRJ’s best interests with diligence, and to recognize, encourage and enhance the contribution of the adult's informal support network in providing proper and meaningful input into decisions made on his behalf. 

IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

[49]HRJ receives a Disability Support Pension of $550 per fortnight.  This is inclusive of an education supplement and a pharmacy allowance.

[50]The adult also has savings of $17,495.  His current budget has a fortnightly surplus of $215.

[51]Centrelink has informed the Public Trustee of Queensland that HRJ is to receive $8691 in back payments due to underpayment of entitlements between May 2006 and July 2008, (prior to the appointment of the administrator).

[52]A decision by Department of Communities – Disability Services is pending regarding HRJ’s possible liability for damage he caused to his previous accommodation.  In addition, there may be a personal injuries claim arising out of the serious assault charges HRJ is currently facing.

[53]All parties at the hearing indicated that HRJ could not manage money and could not budget or plan for his own financial needs.  The evidence also demonstrated that, given the range of financial issues likely to arise, it was unlikely that HRJ’s informal support network would be able to properly deal with these matters without a formal appointment in this regard.

CONCLUSION

[54]The Tribunal considered, based on the evidence provided, that the adult had income and savings that required management to ensure that his needs were met, and that funds were available for accommodation and other living expenses.

[55]The Tribunal was satisfied that HRJ is unable to make his own decisions in regard to these financial matters and that without an appointment of an administrator his needs would not adequately met nor his interests adequately protected.

[56]The Tribunal is satisfied that there is a continued need for an administrator to make decisions about HRJ’s finances.

IF SO WHO SHOULD BE APPOINTED?

[57]In her application to the Tribunal HO proposed herself as administrator for HRJ. 

[58]During the hearing, however, HO indicated that she would support the continued appointment of the Public Trustee if she were to be kept informed about HRJ’s financial situation through regular written statements from the administrator. HO stated that in the period under review the administrator had not consulted with her, nor provided her with written reports pertaining to HRJ’s finances.  The Public Trustee representative indicated that, if the administration appointment were continued, there would be ongoing liaison and consultation with HO.

[59]The Tribunal considered that the Public Trustee of Queensland has been active in identifying, applying for and securing unpaid Centrelink benefits to which the adult is entitled.  Savings have increased, and surplus funds have been invested, during the period under review.

[60]The Tribunal determined that the Public Trustee of Queensland has acted appropriately and has exhibited competence in its role to date.

CONCLUSION

[61]The Tribunal is satisfied, pursuant to section 31(4)(a) & (b) of the Act, that the Public Trustee has carried out its role competently to date and that no other person has been shown to be more appropriate for appointment at this time.

[62]The Tribunal continued the appointment of The Public Trustee of Queensland as administrator for HRJ for all financial decisions until further order of the Tribunal.