HWM
[2010] QCAT 302
•23 June 2010
| CITATION: | HWM [2010] QCAT 302 |
| PARTIES: | HWM |
| APPLICATION NUMBER: | GAA3665-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 23 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of a guardian for restrictive practices (general) |
| CATCHWORDS : | Guardianship and Administration Act 2000 – Section 80ZD – challenging behaviours – chemical restraint – need for guardian for restrictive practices (general) |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
HWM is 43 years of age. He has resided in supported accommodation since 1998. He has been blind since birth and he lost his speech at four years of age. He has been diagnosed with severe intellectual disability and autism.
HWM has displayed challenging behaviour which has resulted in harm to himself and to other people. He has stood over other people in a threatening manner, he has bitten people on the arms, he has attempted to bite people on the ankles, he has thrown rocks, he has repeatedly banged his head and he has grabbed care workers forcefully in a strong grip. Records from previous care providers reveal that HWM has a history of challenging behaviour which appears to be cyclic in occurrence.
Care workers have in the past used a variety of strategies to respond to HWM’s challenging behaviour. Some positive strategies used involve ensuring that consistent routines are in place, providing HWM with rocks to hold as he is fascinated with rocks, offering him a drink of water which he nearly always accepts, ensuring that his environment is quiet, giving him verbal prompts and reassurance and directing him to the toilet as he can often experience constipation.
In July 2007 HWM’s psychiatrist prescribed Zyprexa to manage agitation as a PRN medication. According to documents provided to the Tribunal, Zyprexa has contributed in controlling HWM’s agitated behaviour to the extent where he is not aggressive towards care workers or his cotenants.
On 23 June 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as the guardian for restrictive practices (general) for HWM for 12 months. That appointment is being reviewed.
According to a report by Dr Michael Golden dated 5 May 2009 HWM has a mental subnormality since birth, he would not be able to make decisions freely and voluntarily and he could not understand information about the use of restrictive practices to respond to his behaviour. Dr Golden expressed the opinion that HWM could not make any simple or complex decisions due to an intellectual disability.
The Guardianship and Administration Act 2000 (the Act) defines capacity as: “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 and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
The evidence from Dr Golden has not been challenged and is consistent with the information provided by a psychologist who assessed HWM for the purposes of preparing a transition plan for the use of restrictive practices.
The Tribunal accepts the evidence of Dr Golden and finds that HWM has an intellectual disability which prevents him from being able to understand the nature of decisions about the use of restrictive practices. The Tribunal is satisfied that the presumption that all adults have capacity to make their own decisions has been rebutted in the case of HWM by the evidence provided to the Tribunal. The Tribunal finds that HWM has impaired capacity to make decisions about the use of restrictive practices.
10. In a report to the Tribunal, a guardian from the Office of the Adult Guardian stated that HWM continues to be subject to restrictive practices at his accommodation. According to the documents provided to the Tribunal, the restrictive practice in place is the use of chemical restraint on a PRN basis.
11. The Tribunal accepts the evidence of an assessment conducted by a psychologist in 2008 that HWM’s behaviour is likely to continue to cause harm to himself or other people and that the use of both positive and restrictive strategies are necessary at this stage to respond to his behaviours in such a manner that the risk of harm is reduced.
12. HWM does not have the capacity to consent to the administration of Zyprexa to manage his behaviours to prevent harm. The care workers who administer that medication would be exposed to liability for medicating HWM without his consent after the transitional period providing immunity under the Disability Services Act 2006 ends on 30 September 2010.
13. Section 123ZZC of the Disability Services Act 2006 provides care workers who administer Zyprexa to HWM on a PRN basis with ongoing immunity from liability after the end of the transitional period if the restrictive practice is used in compliance with a positive behaviour support plan and with the consent of a relevant decision maker under that Act
14. The Adult Guardian, appointed in June 2009 as the guardian for restrictive practices for HWM, is the relevant decision maker under the Disability Services Act 2006. The Adult Guardian has not consented to the use of chemical restraint as a positive behaviour support plan complying with section 123L of the Disability Services Act 2006 has not been finalised. The guardian has expressed an opinion that a complying positive behaviour support plan will be developed in the near future. The appointment of the guardian for restrictive practices was due to expire on 23 June 2010.
15. In reviewing the appointment under section 31 of the Guardianship and Administration Act 2000, the Tribunal had to consider whether the current appointee was competent and appropriate and also whether an appointment was necessary in terms of section 80ZD of the Guardianship and Administration Act 2000.
16. The Tribunal finds that the evidence establishes that HWM is likely to cause harm to himself or to other people by his aggressive behaviour. The Tribunal finds that HWM’s interests would not be adequately protected unless both positive and restrictive strategies are used to manage his behaviour as at this point in time the use of both types of strategies is the only effective means to reduce the risk of harm from that behaviour.
17. The Tribunal is satisfied that the care workers providing services to HWM would not be able to use chemical restraint without consent from a guardian for restrictive practices due to liability concerns. By appointing the Adult Guardian as the guardian for restrictive practices for a further 12 months the use restrictive strategies as well as positive strategies could continue with consent of the guardian. The Tribunal is satisfied that the criteria in section 80ZD of the Act have been established.
18. In addition, a guardian for restrictive practices would be instrumental in approving a positive behaviour support plan that would be regularly reviewed and monitored to ensure that the least restrictive methods are used in response to HWM’s behaviour. The use of strategies in a positive behaviour support plan can provide the basis for efforts to work towards an improvement of HWM’s quality of life and can be the basis for a reduction in the use of restrictive practices over time.
19. The Tribunal is satisfied that the Adult Guardian is experienced and skilled in decision making about the use of restrictive practices and is appropriate to appoint as a guardian for restrictive practices (general) for 12 months. The guardian for restrictive practices is directed to provide a copy of the positive behaviour support plan and clinical assessments relating to HWM to the Tribunal within one month of consenting to the use of the restrictive practice.
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