In an application about matters concerning GAS - [2024] QCAT 272

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

PARTIES:

In an application about matters concerning GAS [2024] QCAT 272

APPLICATION NO/S:

GAA9707-22, GAA9708-22, GAA90713-22 and GAA9723 22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

28 June 2024

HEARING DATE:

25 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

Guardianship

1.     The guardianship order made by the Tribunal on 31 July 2017 is changed by appointing the Public Guardian as guardian for GAS for the following personal matter:

(a)     seeking help for, or making representations for GAS regarding the use of restrictive practices.

2.     The guardianship order made by the Tribunal on 31 July 2017 is changed by appointing GWA and GRH jointly and severally as guardians for GAS for the following personal matters:

(a)     accommodation;

(b)     health care; and

(c)     provision of services, including in relation to the National Disability Insurance Scheme.

3.     These appointments remain current until further order of the Tribunal. These appointments are reviewable and are to be reviewed in five (5) years.

Restrictive Practices

4.     The Tribunal approves Open Minds:

(a)     containing and secluding;

(b)     chemically restraining;

(c)     physically restraining; and

(d)     restricting access of GAS to objects;

In accordance with the Positive Behaviour Support Plan dated 3 November 2022 subject to any changes notified by the Chief Executive, Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships.

5.     Unless the Tribunal orders otherwise, this approval remains current for twelve (12) months.

APPEARANCES & REPRESENTATION:

Adult:

Did not attend

Applicant/s:

Ms C, Departmental Clinician

Current Guardian/s:

GRH, adult’s mother

Public Guardian:

Ms Crump

Legal Representative:

Mr Robertson was given leave to represent the Department

REASONS FOR DECISION

INTRODUCTION

GAS is 36 years old and resides in accommodation supported by Open Minds. He is subject to various restrictive practices including containment and seclusion. Those restrictive practices due to their severe infringement on an adult’s liberty can only be approved by the Tribunal. This application was to consider the approval of containment and seclusion as well as other restrictive practices. GAS also has guardians, and the appointment of the guardians was reviewed at the hearing.

THE LEGISLATION

The Tribunal is being asked to approve the continued use of containment and seclusion for GAS. These are very serious restrictions on the rights of GAS as it means that GAS will be denied free exit from the premises where he receives disability services in regard to containment[1] and to physically confine GAS alone, at any time of the day or night, in a room or area from which free exit is prevented in response to GAS’s behaviour that causes to him or others in regard to seclusion.[2] The Tribunal may approve these restrictive practices[3] in accordance with s 80V of the Guardianship and Administration Act2000 (‘GA Act’) having regard to the matters set out in s 80W of the GA Act. The Tribunal needs to be satisfied that:
[1]Disability Services Act 2006 (‘DS Act’), s146
[2]DS Act, s 144 Definitions
[3]DS Act, s 144 Definitions
(a)GAS has impaired capacity for decisions about the use of restrictive practices; and
(b)There is a need for the relevant service provider to contain and or seclude GAS because:
(i)      GAS’s behaviour has previously resulted in harm to himself or others; and
(ii)      There is a reasonable likelihood that, if the approval is not given, GAS’s behaviour will cause harm to himself or others; and
(c)A Positive Behaviour Support Plan[4] (‘PBSP’) has been developed for GAS that provides for the containment and or seclusion; and
(d)Containing and or secluding GAS in compliance with the approval is the least restrictive way of ensuring the safety of GAS or others; and
(e)GAS has been adequately assessed by appropriately qualified persons within the meaning of the DS Act, s144 in the development of the PBSP for GAS; and
(f)If the PBSP for GAS is implemented –
(i)      The risk of GAS’s behaviour causing harm will be reduced or eliminated; and
(ii)      GAS’s quality of life will be improved in the long term; and
(g)The observations and monitoring provided for under the PBSP for GAS are appropriate.
[4]DS Act, s 150 sets out the requirements for a PBSP
The matters which must be considered under s 80W(1) of the GA Act are:
(a)The suitability of the environment in which GAS will be contained and or secluded;
(b)the terms of any forensic order or treatment authority under the Mental Health Act 2016 (‘MH Act’) and views of a senior practitioner responsible for the care of GAS under the Foreign Disability Act 2011;
(c)any strategies, including restrictive practices, previously used to manage or reduce the behaviour of GAS that causes harm to GAS or other, and the effectiveness of those strategies;
(d)the type of disability services provided to GAS.
The Tribunal may also consider the matters in s 80W(2) of the GA Act in regard to containment and or seclusion. An approval of containment or seclusion must not be for a period in excess of 12 months[5].
[5]GA Act, s 80Y
The Tribunal may consider the approval of other restrictive practices under s 80X of the GA Act when it proposes to give an approval for containment and or seclusion under s 80V of the GA Act in relation to GAS. The approval of the other restrictive practices is subject to the Tribunal being satisfied of the matters set out in s 80V. The Tribunal must also consider the matters set out in s 80W(1) and, if the restrictive practice is chemical restraint, the views of the treating doctor about chemical restraint. In this case the other restrictive practices include chemical restraint, physical restraint and restricting access to objects.
There is also a review of the appointment of guardian for GAS. The Tribunal reviews the appointment of guardians in accordance with s 31 and s 12 of the GA Act and must be satisfied that:
(a)GAS has impaired capacity for personal matters;
(b)there is a need for decisions in regard to particular personal matters; and
(c)without appointment, GAS’s needs will not be adequately met or his interests will not be adequately protected.
When considering the personal matters for which a guardian may need to be appointed the Tribunal is required to ensure that the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent[6].
[6]GA Act, s 5(d) and s 11B General Principle 9
As this is a review of the appointment of guardian, if there is a need for one then the Tribunal may make an order removing an appointee only if the appointee is no longer competent or another person is more appropriate for appointment[7] except if the current appointee is the Public Guardian, then it will be if another person is appropriate for appointment in accordance with s 31(6) of the GA Act[8].
[7]GA Act, s 31(4)
[8]GA Act, s 31(6)
There is a presumption of capacity in accordance with s 7(a) and s 11 of the GA Act and it is required for that presumption to be rebutted in regard to guardianship and restrictive practices before I may consider the applications further. Capacity is defined in the Dictionary in Schedule 4 of the GA Act as meaning 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.
An impairment of any one of those limbs may cause an adult to have impaired capacity in regard to the matter under consideration, in this case personal matters and restrictive practices.
The Tribunal when determining an application in this jurisdiction is a public entity for the purpose of the Human Rights Act2019 (‘HR Act’) and I am required to ensure that the Tribunal process and my decision give proper regard to GAS’s rights as set out in the HR Act. I note that there are various provisions in the GA Act designed to protect and enhance the exercise by GAS of his human rights[9]. The Tribunal may limit GAS’s right in accordance with s 13 of the HR Act, having regard to:
(a)the nature of the human right;
(b)the nature of the purpose of the limitation and the relationship between those things;
(c)whether there are any less restrictive and reasonably available ways to achieve the purpose and its importance;
(d)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and
(e)the balance between the matters above.
The relevant rights for GAS would include s 15 HR Act - recognition and equality before the law; s 17 HR Act – protection from torture and cruel, inhuman or degrading treatment; s 19 HR Act – freedom of movement; s 25 – privacy and reputation; s 29 HR Act – right to liberty and security of person; s 30 HR Act – humane treatment when deprived of liberty; s 31 – fair hearing and s 37 HR Act – right to health services.
[9]GA Act, s 5, s 6, s 7, s 11, s 11B

CAPACITY

GAS’s capacity to make decisions about restrictive practices and for personal matters needs to be determined as a threshold issue in regard to these applications. GAS has diagnoses of severe autism and intellectual disability and is also non-verbal according to his then general practitioner, Dr M. In Dr M’s opinion GAS has very limited ability to make decisions about personal health care and no ability to make decisions about lifestyle and accommodation choices. He also has no ability to make decisions in regard to restrictive practices. GAS uses gestures, looks and gazes to communicate. Overall, he is unable to make any complex decisions in the opinion of Dr M. The PBSP for GAS notes that GAS’s development was typical up to 18 months old. After this time, his milestones were delayed and he became excessively active. Various assessments were said to have indicated that GAS has significant impairments in the areas of attention, memory and planning. He was also diagnosed with Autism when he was 18 months old.
There was no one at the hearing who disagreed with Dr M’s report. Therefore, GAS has limited ability to understand the nature and effect of decisions due to the effects of his diagnoses of autism and intellectual disability. He is also non-verbal and so his ability to communicate his decisions is extremely limited. Having regard to the definition of capacity set out above I am satisfied that GAS has impaired capacity for personal matters and restrictive practices.

RESTRICTIVE PRACTICES

The PBSP for GAS was dated 3 November 2022 and prepared by Ms C, who holds a Bachelor of Occupational Therapy and provisional registration as a PBS practitioner. She is the principal clinician with the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (the Department). There were assessments carried out as follows to inform the development of the plan:
(a)Functional behaviour assessment – Ms C;
(b)Mealtime review assessment mealtime procedure – Ms H;
(c)Neurological report – Dr M
(d)Mater intellectual disability and autism service (MIDAS) Clinic report and recommendations – Dr T; and
(e)Occupational Therapy Report – Ms S
The addendum to the PBSP noted that there was no disagreement between the people who assessed GAS. The views of parties who were consulted in regard to the plan were set out in the addendum as well: GAS was not able to be consulted; GAS’s mother continued to support the use of all restrictive practices GAS is subjected to within the PBSP, as necessary for the safety of GAS and others; GAS’s support staff supported the use of containment, seclusion and the other restrictive practices as the least restrictive way of keeping GAS and others safe; and the support service team leader also supported the use of all restrictive practices, as necessary to keep GAS and his staff and the community safe from his behaviours of harm.
The containment and seclusion report to the Tribunal confirms that GAS is not subject to a forensic or involuntary treatment order under the MH Act.
The PBSP for GAS provides details of his support history, noting that there have been periods of poor outcomes while being supported. His communication style is explored because he is non-verbal and has a limited range of communication techniques. It is therefore important that his staff are fully aware of his communication abilities. His current support service Open Minds are noted as actively implementing proactive strategies to reduce the use of restrictive practices and provide GAS with increased opportunities for skill development. It is said in the PBSP that this has resulted in a significant reduction in the use of some restrictive practices including seclusion and restricted access to objects. GAS’s health and medical issues are set out in the report. The goals of support set out in the PBSP are that GAS will be supported to lead a full life, which reflects his personal preferences; will be supported to develop skills, taking into account his personal strengths and needs; and behaviours of harm including restrictive practices will be minimised.
The PBSP provides a set of hypothesised functions of the behaviours that cause harm to self or others, which is why GAS engages in challenging behaviours. The PBSP then sets out the early warning signs and triggers for GAS’s behaviours of harm and then his behaviours of harm as discussed below.
Open Minds, according to the PBSP, provide GAS with both in-home and community access support. The in-home support includes 2:1 support between 7:00am and 9:00pm; 1:1 active support between 6:30am and 7:00am and sleepover shift between 10:00pm and 6:00am. GAS is subject to seclusion during the periods 9:00pm to 10:00pm and 6:00am to 6:30 during periods of 1:1 support. The community access is always by 2:1 support and occurs daily.
GAS has a history of physical harm to others going back to when he was 4 years old when he was described by his doctors as having rage attacks. And being extremely aggressive. At 9 years old he was continuing to engage in physically aggressive behaviour, including hitting and kicking others in the school and home environment. At age 12 respite services documented that he attempted to bite others and hitting and kicking others. At age 15 his behaviours intensified and due to his family being fearful of him he was relinquished into care. GAS currently displays behaviours of harm including hitting, grabbing, pinching, biting, pushing or kicking others. He has engaged in physical aggression which resulted in medical attention being required, for example when he bit someone on the neck. It is stated in the PBSP that the frequency, intensity and duration of his physically aggressive behaviour has decreased over the years.
In the period 1 October 2021 to 30 September 2022 (‘the current reporting period’) GAS engaged in 7 incidents of physical aggression all occurring in his home environment. Six of these incidents resulted in bruising or redness and one incident required first aid. During this incident GAS became escalated during a family visit and a staff member stood in front of GAS’s father and he grabbed and bit the staff member. All incidents involved GAS grabbing or attempting to grab his staff when in an escalated state. Two incidents involved him attempting to bite staff. During most incidents he calmed and returned to baseline within 20 minutes, during one incident he was reported to be in an escalated state for 45 minutes. In the period 1 October 2020 to 30 September 2021 (‘the previous reporting period’) there were 8 incidents of physical aggression with 5 of these in his home environment and 3 within the community. With 6 incidents being described as attempted contact or contact made without injury. While 2 incidents resulted in bruising or redness. All of the incidents involved GAS grabbing and/or pushing staff. There was one incident where he attempted to bite staff. The duration of the incidents ranged from 20 minutes to 6 hours.
He also displays self-injurious behaviour of hitting, kicking and or kneeing hard surfaces and banging his head with force against hard surfaces. Across the current reporting period there were 41 incidents of self-injurious behaviour. Of these, 6 involved attempted contact or contact made, no injury occurred and 35 involved bruising or redness. Most incidents involved GAS biting his fingers and kneeing doors/walls. He remained in an escalated state for between 3 minutes and 6 hours and 10 minutes. In the previous reporting period, there were 13 incidents reported where GAS engaged in self-injurious behaviour. Though it is stated in the PBSP that incidents in this period were significantly underreported. While in the period 1 November 2019 to 30 September 2020 there were 59 incidents of self-injurious behaviour, and this is considered to be a more accurate representation of GAS’s behaviour. The PBSP states that he has developed osteoarthritis in his fingers due to inflammation caused by self-injurious behaviours.
In the recording period, there were 35 incidents in which GAS engaged in property damaging behaviour. All incidents involved GAS hitting, kicking or kneeing hard surfaces with significant force. Most incidents (27) involved bruising/redness. The duration of incidents ranged from 5 minutes to 2 hours and 10 minutes. In the previous recording period there were 13 reported incidents of property damage with no intensity recorded, this again was considered not to be a true reflection of GAS’s behaviour and staff were retrained as mentioned above.
GAS has a diagnosis of polydipsia and may consume or attempt to consume excessive quantities of fluid. As a result, he has a history of mild hyponatraemia (low sodium). There were no incidents of GAS engaging in excessive fluid consumption across the current or previous reporting period. I note that the tap system in GAS’s accommodation is controlled by his staff in accordance with a restrictive access to objects protocol.
GAS also has PICA and so may consume or attempt to consume non-food items, for example clothing. There were 4 incidents during the current reporting period of GAS engaging in PICA. He ingested a handful of grass during one incident. On two occasions he ingested a piece of his shirt and on another staff observed foam ripped out from GAS’s couch, it is unknown if he had ingested foam at this time. During the previous recording period there were also 4 incidents. During two incidents he was chewing on leaves, 3 bits of bark and one large grass clipping and 1 linen rag. GAS was responsive to staff direction during these incidents to spit these items out. He also at times targets food which has been discarded by the public. There was one incident of GAS eating chips which were on the ground in the current reporting period.
Historically, GAS had stronger behaviours as illustrated in Dr M’s correspondence from 27 October 2017. GAS’s main problem is an explosive temper and in the past, he has injured staff, but in recent times, there has been less of this. This was confirmed by the parties at the hearing. He is said to still have self-destructive behaviour if he gets frustrated. Dr M noted that he has had stable care staff and this has helped him to manage. They take him on outings to remote locations and he really enjoys this, and it clearly helps his wellbeing. There was said to have been a severe episode of destructive behaviour 3 years ago (in 2014) and he wrecked a specially modified car. It is noted by Dr M that the service provider refused to pay for a new vehicle and GAS was effectively confined to his unit for 6 months and his behaviours escalated dramatically. Dr M states that while GAS has enjoyed good improvement, he doesn’t believe GAS is sufficiently under control to consider moving him to a less secure environment. The explosiveness of his behaviour and its violence constitute significant risks to the general public, the key to success is consistency of approach by his carers and he has had the same carers for years.

There are a set of strategies set out in GAS’s PBSP to meet his needs. These include ensuring regular medical reviews with his GP, blood tests, adherence to his seizure management plan, mealtime procedure and to continue to administer his medication in accordance with his GP’s directions. There is also a PICA management plan set out in the PBSP. It is noted that restricting access to linen and clothing was removed from GAS’s PBSP in 2021 with all linen and clothing not in immediate use to be kept in the laundry cupboards, where they have been kept historically, however the cupboards are not to be kept locked. GAS is to be supervised at all times when he is in the laundry. Restricting access to audio-visual cables was also removed from GAS’s PBSP plan in 2021. They are contained within the TV cabinet, of which access is via a door in the kitchen. The door is to be kept closed at all times. GAS is to be supervised at all times when he is in the kitchen. Restricted access to knives was removed from GAS’s PBSP in 2021 and after each use they are now cleaned and returned to the unlocked kitchen drawer. Knives are never to be unattended on the kitchen bench and GAS is to be supervised at all times when he is in the kitchen. In the previous plan GAS was also subject to restricting access to bulk foods. Over the current review period a trial was commenced to decrease this by unlocking the pantry in GAS’s kitchen. Staff will continue to support GAS in accessing food safely by providing opportunities for him to be involved in meal preparation activities and providing him with information in regard to safe foods.
Having regard to GAS being non-verbal, communication strategies are of the utmost importance in meeting his needs and while various communication strategies have been trialled over the years, it is reported by GAS’s speech pathologist that he has not shown consistent acquisition of any new communication skills. Though there are continuing efforts to trial new communication techniques, staff are to support GAS to maintain his current communication skills through implementation of the steps set out in the PBSP including familiarising themselves with the communication dictionary. It is noted that GAS does not have a consistent yes/no response. Staff are to encourage GAS’s participation in household activities and to ensure accurate incident reporting. There are also strategies to encourage GAS’s participation in household activities including various aspects of meal preparation, washing up, watering his plants, completing laundry and hanging out clothes and linen.
The importance of monitoring and recording incidents of harm and the use of restrictive practices was subject to training by the Department after it was identified that incidents were not being recorded to a legislative standard in the previous period. It is stated in the PBSP that the standard of reporting has greatly improved.
The PBSP details strategies to increase GAS’s skills in regard to accessing food safely, which has meant that restricting access to objects can be more limited and to develop his shopping skills.
There are strategies in the PBSP to be used by the service provider to maximise opportunities through which GAS can improve his quality of life. These include encouraging participation in preferred and meaningful activities including accessing the community, jumping on his trampoline, listening to music and the TV and relaxing on his couch or bed. Consideration was being given to pet therapy. Trials of him participating in food preparations such as cookie making had taken place though he showed limited interest. GAS was said to maintain close connection with his family and staff were to continue to support him to do this. It was noted in the PBSP that maintaining a regular and preferred support team has been a significant factor in the stabilising and responding appropriately to GAS’s behaviours, developing his skills and increasing his quality of life. The community access arrangements for GAS require two supports and there are a set of criteria for suitable locations with a risk assessment to be performed before community access. GAS owns his own vehicle and it is noted that he is separated from his staff by a metal mesh cage and Perspex screen. GAS is to be supervised closely by his two staff members during community access.
There are also a set of strategies in the PBSP to be used to reduce the intensity, frequency and duration of GAS’s behaviour. These include maintaining proximity of 1-2 metres away from GAS and interacting with him if appropriate. If he does not respond to interaction, staff are to disengage and retreat away from the area. Staff are to attempt to problem solve what GAS may be trying to communicate and meet his identified needs. Provide him with a drink of water and food items, offer him a shower and assist as appropriate. If he is showing a low level of early warning sign behaviour, he may be asked if he wants to go for a drive, if appropriate and safe with a community access risk assessment to be completed. If staff consider GAS may be experiencing pain, PRN Panadol may be provided in accordance with GP instructions and staff are to seek medical attention if he is injured. Staff are to provide short and clear instructions to GAS for example to tell him not to grab staff and not to eat inedible items. If GAS grabs a staff member’s shirt, he will usually release his grip on the shirt as soon as the staff member begins the process of removing their shirt.
The use of all restrictive practices is subject to the use and effectiveness of the strategies in the plan. All proactive and reactive strategies within the PBSP must be implemented consistently to improve GAS’s quality of life and decreases his behaviours of harm.
Previous strategies, including restrictive practices used and effectiveness of GAS’s previous support services was discussed in an addendum to the plan. It was noted that some of his previous services providers had provided poor quality service including the inappropriate and unethical use of restrictive practices and that in one case his care was traumatic and disastrous resulting in GAS having a fear of abandonment. GAS has been subject to restrictive practices including all of those discussed here for a number of years. In 2021 a number of items were removed from restricted access to objects as discussed above as they were no longer considered the least restrictive way of ensuring GAS’s safety. All other restrictive practices have been effective in keeping GAS and others safe, when used as per the protocols in his current PBSP. It is noted that multiple communication strategies have been trialled for GAS over the years, however many have been unsuccessful. GAS’s mother reported that she had some success with facilitated communication with GAS. There was an attempt by the Department to arrange for validation of this but it was not pursued. It is also noted that the proactive and reactive strategies in the current PBSP have remained for the most part unchanged for several years. GAS is said to have a stable, regular staff team, who have contributed significantly to developing the strategies in the PBSP, which has led to a gradual reduction of behaviours throughout the years.
GAS is contained within his home at all times, except when he is participating in community access. It is stated in the PBSP that containment is considered the least restrictive means of ensuring the safety of GAS and others and due to GAS’s behaviours of harm, all community access outings must be planned, and locations must be risk assessed. Over the past several years there have been multiple incidents occurring in the community environment, requiring staff to utilise restrictive practices such as administration of PRN chemical restraint, and the application of physical restraint. The procedure for using containment is as follows:-
(a)A high fence surrounds GAS’s home. All external entrances to his yard are locked. The entrance to the house is kept locked;
(b)The front entry gate is locked as is the garage door. Staff can unlock doors by using an electronic swipe card and
(c)GAS is contained at all times within the boundary of his accommodation except when accessing the community.
GAS continues to be monitored by his staff on a 24-hour care arrangement with an 8-hour sleepover component. When at home GAS has ongoing access to shelter, clothing, bedding, heating, cooling, and toilet facilities. He is supported with his medications, food and drink by staff. The positive effects of containment include that it allows for him to be safely supervised by his staff at all times and for community access to be planned in a safe, meaningful way. The negative effects of containment are that GAS is not able to access environments outside his home.
In regard to seclusion there are three types used with GAS:
(a)Seclusion in response to physical aggression
Seclusion in response to physical aggression (6:30am to 9:00pm) will occur when GAS is engaging in behaviours that present an imminent risk of physical harm to others, and he has been unresponsive to reactive strategies.
(b)Seclusion during periods of 1:1 staffing
GAS has been supported on a 2:1 staff to client ratio since entering supported care. Due to staffing arrangements, GAS was previously secluded from 6:00am to 7:00am until the second staff member came on shift, and from 9:00pm to 10:00pm, as the second staff member left at 9:00pm. A trial has recently commenced for 1:1 active support between the hours of 6:30am and 7:00am; and
(c)Seclusion during the sleepover shift
GAS will be secluded during the 8-hour sleepover shift from 10:00pm to 6:00am.
GAS was secluded a total of 5 times during the current reporting period, of these incidents there was one unauthorised use of seclusion due to a staff member being late for shift. This resulted in overnight seclusion being broken at 7;16am instead of 7:00am., as GAS was considered to require 2 staff members to be present to break overnight seclusion at the time. The other uses of seclusion were all within the maximum time limit and ranged from 2 minutes to 20 minutes, (2, 3, 12 and 20 minutes of duration). These uses were considered to be a necessary response to GAS engaging in physical aggression targeted towards staff. The use of seclusion during the current reporting period was said in the PBSP to be a reduction compared to the previous period.
The use of seclusion is said in the PBSP to be the least restrictive way of ensuring the safety of GAS and others. Seclusion has the positive effect of providing a safe place for staff to retreat to when GAS is targeting them with physical aggression, thus reducing the likelihood of injury to staff and others. While its use is susceptible to abuse when staff are not properly trained, or processes are not monitored, GAS’s liberties and choices are limited. Seclusion is only to be used when there is an imminent risk of physical harm and reactive strategies have been unsuccessful. Previously, GAS was secluded for 2 hours a day when the staffing ratio was 1:1 as he had been supported 2:1 since entering care. There is now a trial of an active 1:1 care shift as mentioned above. When GAS becomes agitated or escalated, as per the PBSP, staff are directed to maintain proximity. Historically and currently, GAS’s presentation when he is in this state, and his staff are close by, he will attempt to grab and bite. Overnight seclusion allows the staff to maintain proximity from GAS, should he present in an escalated state. If proximity were not able to be maintained at this time (as staff are sleeping) staff are at risk of being subject to physical aggression with no time to respond.
The procedure for GAS to be secluded is set out in the PBSP. Where seclusion in response to physical aggression staff will exit GAS’s area via the safest route, ensuring doors are locked behind them. Where possible, staff are to implement seclusion by closing the self-locking outside gate (outdoor drying area) and self-locking kitchen/lounge room door. The outside drying area can then be used as an observation area and the kitchen servery window can be used to administer PRN, as required. Staff are to monitor GAS at least every 5 minutes. Seclusion must cease as soon as it is safe to do so. Seclusion due to physical aggression may be used no more than 5 times in a 12-month period with a maximum duration of 20 minutes at any one time. The containment and seclusion report noted that the maximum limit for daytime seclusion had been decreased form 10 times per year in the previous plan to 5 times year as set out above.
There are 2 periods of seclusion due to 1:1 staffing. The first is 6:00 am to 6:30am; at 6:00am overnight seclusion ceases, and staff are to check on GAS using the most appropriate observation window; at 6:30am staff are to open the back gate, ceasing seclusion, and assist GAS to start his morning routine. If GAS displays physical aggression towards the staff member, or staff are unable to maintain a safe distance between themselves and GAS (1-2 steps) and he is displaying early warning signs, they are to implement the daytime seclusion protocol. It is noted in the containment and seclusion report that previously GAS had been secluded from 6:00am to 7:00am and a trial of 1:1 active support from 6:0am to 7:00am has commenced. And that this is the first time GAS has received 1:1 support in the absence of seclusion. If this is successful a further reduction of seclusion during 1:1 support hours will be assessed in the upcoming review period. During the period 9:00pm to 10:00pm when the second staff member leaves, staff are to ensure the outside gate and kitchen door is shut, GAS is usually in bed at this time. Staff will ensure they check on GAS using the appropriate observation windows at 9:00pm, 9:30pm and 10:00pm. At 10:00pm staff are to commence the overnight seclusion protocol as they begin the overnight sleepover shift. Seclusion during the 1:1 periods of staffing are to be used daily at the times mentioned. Seclusion also occurs during the staff sleepover shift from 10:00pm to 6:00am. If staff hear GAS during the night, they will present at the kitchen servery window and attempt to meet his needs. If an emergency arises staff are to follow the emergency procedure set out in the PBSP. Seclusion during the sleepover shift is used nightly form 10:00pm for 8 hours duration.
During periods of seclusion staff must ensure GAS has access to heating, cooling, bedding, clothing and the toilet. Medication, food and water will be provided via the kitchen servery as required.
The suitability of the environment in which GAS is to be contained and secluded is set out in an addendum to the plan. It notes that a floor plan of the home is set out in the PBSP and that the home is fitted with a combination of self-locking and manual doors, to facilitate containment and seclusion. Staff use the office area to implement overnight seclusion, described below. That GAS can knock on the window to the staff office to seek staff support if, and when, required. The robust build of GAS’s home is required in response to GAS’s ongoing self-injurious and property damaging behaviours., including slamming doors with excessive force, and kicking, kneeing and hitting wall, doors and windows. The layout of GAS’s home is said to allow staff to use proximity control as a reactive strategy when he is engaging in early warning signs and behaviours of harm. There are multiple viewing panels and windows throughout his home, allowing staff to monitor GAS from a safe distance. GAS’s home is surrounded by a large fence. Further supporting the implementation of containment. GAS has access to his backyard and courtyard, which contains his trampoline and a basketball hoop. The inside of his home is sparse, due to his PICA behaviours and his preference to have minimal items in his environment; however it is personalised with multiple photos of GAS and his family.
GAS is subject to chemical restraint both fixed and PRN. Fixed dose chemical restraint is in respect of Olanzapine (Zyprexa) of 5mg in the morning and 10mg at night. Olanzapine 5mg wafer is available as a PRN and can be used twice in a 24 period. Olanzapine 10mg is also available as a PRN and can used once in a 24-hour period. When GAS is engaging in precursor and/or target behaviours, staff will first attempt reactive strategies. If reactive strategies are unsuccessful or there is not time to implement strategies, staff will administer PRN in accordance with the procedure set out in the PBSP. Staff are to monitor GAS for medication side effects and his medication will be reviewed by his GP at regular intervals. GAS will be safeguarded from abuse, neglect and exploitation by accurate and efficient monitoring review and communication between stakeholders. All uses of medication are to be administered in accordance with the GP’s instructions. PRN Olanzapine was used 16 times across 13 incidents with it being given twice during 3 incidents. All uses were considered appropriate and used in response to GAS engaging in self-injurious behaviour, when less restrictive practices had not been successful. This is an increase from the previous period in which PRN was used 11 times across 10 incidents. GAS’s current GP is Dr T and he reviewed him on 17 October 2022.
Chemical restraint is said to be the least restrictive way of ensuring the safety of GAS and others because fixed dose chemical restraint has been effective in assisting GAS to regulate his mood, resulting in an increase in his quality of life and a reduction in his behaviours causing harm. GAS continues to engage in behaviours of harm when agitated including physical aggression, self-injurious behaviour and property damage. PRN chemical restraint continues to be effective in decreasing GAS’s behaviours of harm when reactive strategies have not been effective, or there is no time to implement reactive strategies. It is consistently documented that GAS will often clam, and cease behaviours of harm, after PRN chemical restraint is administered. In regard to negative effects, it is noted that medications such as Olanzapine can have serious side effects.
The clarification of purpose of medication accompanying the PBSP from Dr T was dated 14 October 2022 and did not deal with the medication which is subject to restrictive practices. It was set out in the containment and seclusion report though that Dr T last reviewed GAS on 17 October 2022 and that Dr T had recently taken over GAS’s care. That after consultation with the Department’s clinician Dr T had reduced GAS’s second dose of PRN form 20mg of Olanzapine to 10mg Olanzapine. Dr T’s view was that all of GAS’s fixed dose medication should remain stable at this time, as he was new to providing GAS with care and was waiting for a health summary from his previous GP.
GAS is also subject to physical restraint. Physical restraint may be used in accordance with the PBSP when GAS is engaging in behaviours that present an imminent risk of harm to himself or others, and reactive strategies have not been successful, or there is not time to implement reactive strategies, and the targeted person is unable to escape from the area; staff will utilise physical restraint techniques as a last resort. Physical restraint was said in the PBSP to be the least restrictive way of ensuring the safety of GAS and others considering GAS, at times, continues to target staff with physical aggression, including kicking, grabbing and hitting. Staff have used physical restraint during the current period as a last resort, when responding to an imminent risk of physical harm to themselves, GAS or others. GAS’s community access, his safety and the safety of others continues to rely on staff using reactive strategies in response to early warning signs and behaviours of harm. When reactive strategies were ineffective, or there was not enough time to reasonably implement them, physical restraint has been required to enable staff to protect themselves, GAS, or other. When at home, physical restraint has only been used when, reactive strategies were unsuccessful, or there was not time to implement them, and there was an imminent risk of physical harm to GAS or staff.

Previously staff had used MAPA techniques for physical restraint, however, they have now been trained in the MAYBO techniques set out in the PBSP. The techniques listed in the PBSP are to be implemented according to MAYBO training. These include active palms exit and active palms grab prevention, maximum duration 5 seconds; active palms (take a drink) release, maximum duration 5 seconds; problem solving (parent grip), maximum duration 5 seconds; cradle off – release form clothing grab, maximum duration 5 seconds; wrap hold (standing restraint), maximum duration 30 seconds; and wrap escort, maximum duration 2 minutes. As soon as is practicable and safe, staff will observe GAS following each use of physical restraint. All instances of physical restraint must be reported to management and reviewed by them. Physical restraint is only to be used as directed in the PBSP with annual refresher training for staff. The purpose of physical restraint is to reduce the severity of physical harm to GAS or others. The negative effects of physical restraint include that they all present a risk of injury to all parties involved; GAS will not learn appropriate behaviours from being physically restrained; being physically restrained may trigger previous negative experiences for GAS and may potentially impact the relationship he has with his staff; physical restraint restricts GAS’s freedom and choices and this practice is susceptible to abuse when staff are not properly trained or the processes are not monitored.
Physical restraint was used a total of 13 times across the current period across 7 incidents. A deflection technique was used 4 times, a grab release was used 3 times, a clothing release was used 3 times and a two-person escort was used twice. All uses were within the approved time frames. A bite release was reported to be used; however, the description did not match the correct technique for this release. All uses were in response to GAS engaging in physical aggression towards his staff, except one use of escort, which was used in response to GAS attempting to leave staff support while in the community. Across the previous period a 2-person escort was used 5 times and 2 person standing restraint was used 2 times. All uses were within the approved time limits. All uses were reported to be used in the community to redirect GAS away from the public or an unsafe area when he was presenting as physically aggressive or highly agitated. An example was given in the PBSP of GAS not being able to be redirected away from a campfire when he was camping and in an escalated state. It is stated in the PBSP that while the use of physical restraint appeared to have increased during the current period it was identified that across the previous review period physical restraint was being used but not reported accurately. Staff anecdotally reported that grab release and deflection had been used and not reported.
GAS is subject to restricted access to objects though as mentioned above the extent of this restrictive practice has been reduced since 2021. GAS has restricted access to some bulk amounts of food at all times. The bulk of GAS’s cold food is kept in the staff office, which is locked at all times. Dried food is now kept in an unlocked cupboard in the kitchen. Staff provide GAS with regular meals and snacks throughout the day. Restricting GAS’s access to food is considered the least restrictive way of ensuring his safety due to GAS historically eating foods that present a hygiene and medical risk such as raw meat. It is further documented that he is unable to regulate his food intake and will consume excessive quantities. Unless carefully supervised, GAS will eat foods in an unsafe manner such as over-filling his mouth, which places him at risk of choking. It is also documented that GAS is difficult to redirect when fixated on food.
GAS’s access to hazardous fluids is restricted at all times. Hazardous fluids are kept in the locked laundry cupboard, as well as the locked cupboard under the sink. Restricting GAS’s access to hazardous fluids is considered the least restrictive option as due his intellectual disability he is unable to differentiate between safe and unsafe fluids. In the past he has ingested lawn mower fuel.
GAS’s access to water is restricted between the hours of 10:00pm and 6:00am, and when GAS drinks over 250ml – 500ml from the tap within his unit. Access to water is controlled by the isolation switch in the staff office, staff are to turn on the water every day at 6:00am and off at 10:00pm. Staff are to provide GAS with water at regular intervals throughout the day and record this on the daily recording sheet. Restricting access to water is considered the least restrictive due to GAS being known to drink water excessively and having a diagnosis of polydipsia. He continues to be unresponsive to requests to stop this behaviour when in his home environment. Polydipsia can lead to serious health conditions such as low sodium levels (hyponatraemia) as mentioned above. Hyponatraemia increases the risk of seizures, and GAS has a diagnosis of epilepsy. Dr M, GAS’s previous GP documented that GAS’s water intake was to be restricted to 2.5 litres per day with up to 3 litres per day if his urine output starts to reduce with the heat. In addition, GAS was to have blood tests every 6 months. GAS’s compulsion to drink water in the past lead to dangerous falls in his blood sodium levels.
GAS’s PBSP contains requirements for regular communication between staff upon changeover; between staff and Open Minds management and the Department Clinician as required. Where required the Department will modify aspects of the interventions, based on analysed data and observations of GAS’s support staff, in order to ensure that opportunities for positive outcomes are maximised. Open Minds is to hold regular team meetings that the Department will attend when possible. The Departmental clinician will meet with GAS and his staff at his home on a regular basis. The Department clinician will provide training to all of GAS’s regular staff in his PBSP. Open Minds management will be responsible to provide training to new staff, or to liaise with the Departmental Clinician to provide training as appropriate. Any incident of a behaviour of harm should be recorded and reported to management by the end of shift. Any incident involving the use of an unauthorised restrictive practice will be recorded and reported to management. All incidents will be sent to the Department Clinician for review within the week of occurrence. An early review of the PBSP will be prompted, if necessary, in consideration of any unauthorised use of a restrictive practice, if the maximum use of seclusion is reached or if police intervention is required.
The containment and seclusion report stated in regard to how GAS’s quality of life had improved that he continues to access the community daily with the support of 2 staff members. He goes to a range of different locations. That considering the frequency of GAS’s community access, incidents have been low, indicating the vast majority of community access trips have been successful and safe. He has also had successful overnight camp trips with the support of staff. GAS continued to be supported by regular long-term staff members. This has allowed GAS to develop long-term relationships with his staff and for them to gain a better understanding of GAS. It is said to be important for GAS to be supported by people who know him well, particularly due to his difficulties in communicating and engaging with others. GAS continues to maintain regular contact with his family, with visits at both his and family’s home. The report goes on to discuss how GAS’s skills have been developed while communication strategies and different activities have been continually trialled. It is stated that in the past, there has been limited development in GAS’s skills. However, considering the reduction of incidents over several years, it is considered GAS may be gradually developing in his skills in emotional regulation. That staff continue to focus on the maintenance of GAS’s skills. For example, encouraging GAS to follow a morning routine in which he completed tasks such as laundry and watering his plants.
A community visitor (CV) attached to the Public Guardian also provided a report dated 10 October 2022 to the Tribunal in regard to the use of restrictive practices in respect of GAS. A staff member advised the CV that the Tribunal order included seclusion and they were unaware of any use of it for management of behaviour since the last CV visit on 20 July 2022. The staff member confirmed the use of overnight seclusion. The use of seclusion was confirmed with the team leader. It was noted that GAS resides in a unit constructed by the Department of Housing specifically to meet the needs of people who exhibit behaviours of harm towards themselves and others. The main entrance gate to the property and front door to the unit, the front door into the hallway, from the hallway into the living area, from the office into the kitchen and from the kitchen into the living areas are only able to be opened with the use of a swipe card. That staff report if they observe indications of agitation, self-harming or aggression they retreat to the office giving GAS space as this assists GAS to self-calm. It was reported that the gate to the drying area and from the laundry into the yard, the door between the kitchen and the laundry and from the office into the kitchen remain open but if seclusion is required due to risk are closed and lock automatically. When subject to seclusion GAS is reported to remain in the area of his unit where he has access to his bedroom, bathroom, activities room, living room and a fenced yard which includes a covered outdoor area. There is furniture in the lounge and activities room for GAS’s use. Staff stated that in the event of activating seclusion GAS is provided food and fluids via the kitchen servery. There are observation points available during seclusion with viewing windows from the office into the living room and the entrance hallway into GAS’s bedroom. These are covered by venetian blinds and curtains from the kitchen windows and servery hatch into the living room.
The CV has observed GAS to be subject to containment at all times each time they have visited, and this was confirmed on this visit. All external doors remain locked while staff interact with GAS within the unit. The yard has a perimeter fence of approximately 4 metres high and gates to which are locked. There have been some issues with GAS closing doors and cutting off access to the kitchen but he has access to it through the laundry gate and door,
The CV was provided with a copy of clarification of purpose of medication dated 10 October 2022 which lists Olanzapine 10mgs each evening for agitation identified as a mental illness and Olanzapine 5mgs each morning for agitation as a result of behaviour. There is also PRN 5mgs and 10mgs Olanzapine but not identified as being for a medical condition. The previous PBSP of 8 November 2021 showed 5mgs and 20mgs PRN Olanzapien to be administered in accordance with a protocol. The CV set out the recorded use of PRN Olanzapine as occurring 8 times between 9 August 2022 and 30 September 2022.
While there was authorisation for physical restraint in the previous PBSP the CV was advised that there had been no use of it since 3 July 2022. GAS was observed by the CV as restricted from free access to water, chemicals and food which was confirmed as continuing. GAS’s access to water is controlled from the staff office when he is sighted accessing excessive amounts of water, the main food supply is retained in the staff office with snacks left in the kitchen refrigerator for independent access since kitchen access has commenced. The current PBSP was available in a folder on the staff office desk and there was no evidence found which indicates the use of restrictive practices outside of that authorised in the PBSP. It was noted that incidents are recorded in the behaviour recording sheets with a copy emailed to the team leader and a hard copy kept in a folder on site. It was reported that while behaviours had occurred since 3 July 2022 there had been no use of seclusion or physical restraint.
The CV noted that on seeking visit appointment, they had consistently found that GAS is out on community access each morning and frequently again in the evening, a staff member advised that GAS is supported to access community daily each morning and, on most days, again each late afternoon. These access visits include parks and theme parks, bike riding. GAS is also supported to visit his family home, in warm weather to go swimming including at the local pool and camping trips annually with negotiations for a second camping trip. The CV notes that in face to face visits they have sighted a good supply of fresh fruit and vegetables in the staff office refrigerator and cupboards. GAS has been sighted as dressed in well-fitting and well maintained clothing suitable for the season. His home is observed as well maintained and comfortable with furnishings and an adequate supply of linen in GAS’s bedroom. There is a trampoline in the yard and a basketball hoop. There are communication tools at the kitchen servery. GAS is going through a series of medical reviews with a change in GPs and all staff have completed MAYBO training and are scheduled to attend PBSP and restrictive training.
The CV was of the view that GAS’s quality of life appears to have improved significantly with evidence of daily community access, camping trips, access to new experiences, less use of restrictive practices and improved health. Progress in further improving GAS’s quality of life is restricted by the lack of appropriate accommodation with a more functional environment and which includes a sensory environment as identified in assessments by a Clinician several years ago. GAS remains accommodated in a facility which was purpose built as transition housing since 2011 with the CV being advised by staff of discussions occurring and visits from a variety of personnel to this site but with no information of progress and time-frame being made available to staff for alternative accommodation to meet GAS’s needs in a community setting. Furthermore, it is said that provision of least restrictive support is unable to be pursued at this site because all doors lock when closed and only open with the use of a swipe card. The CV notes that staff have reported a re-emergence of old behaviours including that of GAS banging the van side window during transit which required replacement.

DISCUSSION

GAS has a long history of behaviours of harm and at early stages of his life he was described as having an explosive temper. He clearly still exhibits behaviours of harm as set out in the PBSP but they have to a large degree moderated. This is on the background of an adult with diagnoses of intellectual disability, autism and who is non-verbal. GAS is contained due to the fact that it is still considered necessary that he be supervised in the community on the basis of 2:1 support and therefore it would put both him and others at risk if he were able to access the community unsupervised. I also note that with GAS’s diagnoses of polydipsia and PICA he would be at further risk of self harm if he had unsupervised access to the community. While the use of containment is very restrictive of GAS’s freedom it is ameliorated by the daily community access that GAS is supported in and therefore is made more tolerable for GAS. The consequences of community access being denied can be seen in the result of him not being able to get community access for 6 months in 2014 after he destroyed his vehicle which caused his behaviours to rise dramatically. There is no plan currently to reduce the use of containment. Seclusion has been used only 5 times in the last period while there was approval for 10 uses and the PBSP now only asks for approval for its use during the day in regard to behaviours for 5 times. There has also been a trial of 1:1 support in the morning between 6:30am and 7:00 am which means that 1:1 seclusion is now only for 90 minutes a day. It is stated that if this trial is successful there will be a further trial. Seclusion can only be used where all strategies, including reactive strategies, have failed to stop the risk of harm from GAS.
In regard to GAS’s accommodation, he has access to everything that he needs during containment including his outdoor area and with seclusion he has access to all of his private areas and food, water drink and medicine are provided.
The PBSP is thorough and deals with all of the matters required under s 150 of the DS Act. It sets out a good analysis of GAS’s behaviours of harm, his triggers and warning signs and provides proactive and reactive strategies to be used to ensure that GAS staff are able to assist GAS to meet his needs, in particular, through having familiar staff who have a thorough understanding of GAS and his communication abilities. The plan has particular strategies for the development of GAS’s skills which has resulted in the reduction of some restrictive practices and has strategies to maximise his opportunities GAS’s quality of life be encouraging his participation in preferred and meaningful activities. The PBSP also sets out guidelines for use of community access to ensure, for example, that the venue is appropriate to GAS’ needs. The PBSP also provides details of who assessed GAS for the purpose of the plan and there was a range of professionals with appropriate skills having regard to GAS’s circumstances involved.
Having regard to GAS’s history of harm and the use of quality of life enhancing goals in terms of community access I am satisfied that containment is the least restrictive way of ensuring the safety of GAS and others. I have also had regard to the HR Act and while this is a limitation on GAS’s freedom of movement, his right to liberty and security of person it has the purpose of ensuring his and others safety in accordance with the DS Act and GA Act and is therefore justified.
Seclusion as a result of behaviour has been greatly reduced, a testament to both the positive and reactive strategies used by staff that know GAS well and the use of seclusion during 1:1 wake periods is also being moderated with a trial reduction which if successful will be enlarged. The use of sleepover seclusion is for the safety of staff in case of an escalation by GAS at a time they are not able to use appropriate strategies to deal with GAS. If GAS requires assistance, staff will be available for him at the kitchen servery to meet his needs. When GAS is threatening others and all other strategies have not dealt with his behaviour then there is no other way to deal with the behaviour without risking harm to both GAS and others. The accommodation that GAS uses has a system of locking doors and swipe cards to facilitate seclusion and it can be utilised quickly. That its use has decreased subsequently and the PBSP only seeks for authority to use seclusion 5 times a year as opposed to 10 the year before shows that it will be used sparingly and only as a last resort and therefore is least restrictive. I have also considered the requirements of the HR Act and am satisfied that while seclusion is an infringement of GAS’s freedom of movement it occurs when there is a serious risk of harm and perceived risk of harm due to there being only 1:1 support and is justified by it having the purpose of reducing of harm to GAS and others.
There are requirements set out in the plan for the monitoring and reporting of GAS’s behaviours of harm and monitoring and reporting of the use of seclusion as a result of GAS’s behaviours of harm. Reporting occurs to the service provider as well as the Department. There are also regular meetings between representatives of the service provider and the Department’s representative. When it was found that some behaviours of harm had been underreported there was specific training to ensure that this did not occur again.

Previous strategies, including restrictive practices used to manage GAS’s behaviour are set out above. It is noted that prior to his current service provider GAS has had some poor outcomes form service providers with the use of unauthorised restrictive practices. That the current restrictive practices have been in place for many years though there has been a reduction of them with reductions in behaviours. The lack of success with communication strategies is also noted. The stable, regular team that GAS has to support him is noted to have contributed significantly to the reduction in behaviours of harm.
As mentioned above, the level of support that GAS has enables him to have a good quality of life in terms of community access with 2:1 support.
I am satisfied that the requirements of s 80V and s80W of the GA Act are met and I approve the use of containment and seclusion for GAS in accordance with the PBSP dated 3 November 2022.
In accordance with s 80X of the GA Act I am also able to consider the approval of the other restrictive practices which GAS is subject to. That is chemical restraint, physical restraint and restricted access to objects. Approval of the other restrictive practices requires consideration of the matters set out in s 80V and s 80W of the GA Act and in respect of chemical restraint the views of GAS’s treating doctor about the use of chemical restraint.
The details of the chemical restraint which GAS is subject are set out above, they are daily fixed dose of Olanzapine morning and night and PRN Olanzapine. I note that the CV report shows that there has been a reduction in the second PRN dose from 20mg to 10mg approved by Dr T. It is noted that GAS has been found not to have capacity to make decisions about restrictive practices and his behaviour has previously resulted in harm to himself and others and still results in harm though of a lesser intensity according to the information set out in the PBSP. The PBSP prepared for GAS which complies with the requirements of s 150 of the DS Act set out the details of chemical restraint to which GAS is to be subject. GAS has a long history of behaviours which have moderated over the years from him being described as having an explosive temper to now having behaviours which mostly cause bruising and redness. I accept that the use of fixed dose chemical restraint has assisted GAS to regulate his mood resulting in an increase in his quality of life and a reduction in his behaviours of harm. His new GP Dr T notes that the fixed dosage should be maintained until GAS can be reviewed; this may be an opportunity to trial a reduction in his fixed dose medication. PRN medication continues to be effective to reduce GAS’s behaviours of harm when reactive strategies have not been effective. Where the behaviours of harm are self-injurious there are no other restrictive practices which could be used as the goal is to stop GAS hurting himself so seclusion or physical restraint are not appropriate. Dr T has reduced the second PRN dose from 20mg to 10 mg which is positive for GAS as the medication does have side effects.
I am satisfied that the use of chemical restraint in accordance with the PBSP will reduce the risk of GAS’s behaviours causing harm to himself and others and his quality of life will be improved by the use of it facilitating such things as community access. The strategies to be used before chemical restraint may be utilised ensure that it is only used when necessary in terms of PRN medication. In terms of observations and monitoring, staff monitor GAS for signs of medication side effects and its use is reviewed regularly by his treating doctor. All uses of medication will be administered as per the prescription and documented according to Open Minds policy and procedure.
In terms of the matters set out in s 80W(1) of the GA Act there are no issues regarding the suitability of the environment in which GAS lives in regard to chemical restraint.
GAS is not under any order under the MH Act. GAS has been subjected to restrictive practices including chemical restraint for a number of years and this has been effective in keeping GAS and others safe, when used as per the protocols in his current PBSP. The proactive and reactive strategies within GAS’s PBSP have remained, for the most part, unchanged for a number of years. His stable and regular staff team have contributed significantly to developing the strategies in the PBSP, which has led to a gradual reduction in his behaviours of harm. Relevantly, in regard to the matters set out in s 80W(2) there were no relevant issues in regard to the findings of the persons who assessed GAS; all stakeholders consulted including GAS’s mother supported the use of chemical restraint in accordance with the PBSP; GAS’s staff are to implement the use of chemical restraint in accordance with the PBSP to monitor him for side effects and to document their administration in accordance with Open Minds policies and procedures.
In regard to GAS’s human rights, chemical restraint impacts his right to health services as he is being prescribed medication not for a medical condition but for the purpose of controlling his behaviours of harm. This limitation on his right to medical services is justified because it is approved by his GP, it is to be used in regard to PRN only after all other strategies have failed and has been demonstrated to assist him to control his moods which facilitate community access and has the purpose of reducing his behaviours of harm.
I approve the use of chemical restraint in accordance with the PBSP.
GAS is also subject to physical restraint in accordance with PBSP I note that the type of physical restraint has been changed to the MAYBO techniques. The requirements of s 80V of the GA Act have been met in regard to capacity and behaviour of harm. The use of physical restraint is set out in the PBSP and is to be used as a last resort when GAS is engaging in behaviours that present an imminent risk of harm to himself or others, and reactive strategies have not been successful, or there is not time to implement them. These techniques are therefore controlled ways of staff physically deflecting or redirecting GAS and involve direct physical contact with him. There have been times during the reporting period where they have been required to be used and each incident is fully documented. It would be inappropriate if any direct contact with GAS was not performed in a way to minimise and risk of injury to GAS while avoiding risk to others and the MAYBO technique has that purpose and there are time limits on its use set out in the plan for the various MAYBO techniques and it is therefore the least restrictive way of ensuring the safety of GAS and others considering that he continues at times to target staff with physical aggression. GAS has been adequately assessed within the meaning of the DS Act s 144. The implementation of the physical restraint protocols in the PBSP will ensure the risk of GAS’s behaviours causing harm will be reduced when there is an imminent risk of harm and reactive strategies have not worked. GAS’s quality of life will be improved because these strategies ensure that the harm GAS can cause is minimised by their use and they facilitate his community access by being available where necessary. In terms of observations and monitoring, as soon as it is practical and safe staff will observe GAS following each use of physical restraint for injury. All instances of physical restraint must be reported to management by the end of shift and they will be reviewed by management and the department.
In terms of the matters set out in s 80W(1) of the GA Act, there are no issues with GAS’s environment in regard to physical restraint. There are no issues under the MH Act and I note that previously the MAPA techniques were used for physical restraint and the Open Minds has now switched to MAYBO. In terms of the type of disability service provided to GAS there were no issues raised and it is noted that he has 24/7 support with the bulk of the awake shifts being 2:1 support. In regard to the matters set out in s 80W(2) of the GA Act, there are no issues in regard to the findings of each person who assessed GAS; all stakeholders including GAS’s mother supported the use of physical restraint in accordance with the PBSP; the service provider is to train and monitor the staff in the use of MAYBO technique and all incidents involving its use will be reviewed by management of Open Minds and the Department.
Physical restraint technically is an assault under the Criminal Code but the application of it in accordance with the PBSP provides immunity to the service provider and staff in accordance with ss 189 and 190 of the DS Act. It also would potentially constitute a breach of s 17(b) of the HR Act in terms of being treated or punished in a cruel, inhuman or degrading way. The use of physical restraint as a last resort when there is an imminent danger of harm to GAS or others and must be in accordance with specific techniques set out in the plan. While they are clearly an infringement on GAS’s rights, there purpose of minimising harm when it is imminent is justified having regard to GAS’s history of causing harm to himself and others.
I approve the use of physical restraint in accordance with the PBSP.
GAS is subject to restricted access to objects and this has been an area of success as those objects subject to restricted access have been lessened over the last couple of years. In particular, restricted access to linen and clothing was removed in 2021 with the cupboard they are kept in now to be unlocked with GAS being supervised while in the laundry. The same with audio visual cables which are kept in a cupboard accessed from the kitchen. Restricting access to knives was also removed from GAS’s plan. There is a current trial of unlocking the pantry in GAS’s kitchen. The PBSP makes it clear that GAS is to be supervised in the kitchen at all times. The need for restricted access to objects is as a result of GAS’s diagnoses of polydipsia, PICA, his behaviour of consuming unsafe food and being unable to regulate his food intake. All of these present risks of harm to GAS. His polydipsia has resulted in his sodium level dropping to the extent where it became mild hyponatraemia and this can increase the risk of seizures in an epileptic such as GAS.
In terms of s 80V of the GA Act GAS has impaired capacity and there is evidence that his behaviours mentioned above has previously caused harm to himself and that these behaviours will continue to cause harm if the approval is not given as they relate to diagnosed conditions that he has. GAS has been adequately assessed by those set out in the PBSP; GAS historically has eaten foods that present a hygiene and medical risk, such as raw meat; he is unable to regulate his food intake; and he is difficult to redirect when fixated on food so restricted access to food is the least restrictive way of dealing with his behaviours.
The careful monitoring of GAS by his staff has meant that the items that need to be subject to this restrictive practice have also been lessened. The PBSP developed for GAS provides for restricted access to objects; GAS’s diagnosis of polydipsia reflected in his excessive drinking of water; he has been unresponsive to requests to stop this behaviour in his home environment; and having regard to the risks from low sodium; restricted access to water is the least restrictive way of dealing with this behaviour.
GAS is controlled by having his access to water restricted as GAS is unable to differentiate between safe and unsafe fluids, an example was given above of him drinking petrol, so restricting his access to hazardous fluids is the least restrictive way of ensuring his safety in regard to them.
GAS was assessed by appropriately qualified persons in the development of the PBSP. The use of restricted access as set out in the PBSP ensures that GAS’s behaviours causing harm will be reduced and his quality of life will be improved because he will not be at risk in regard to non food items as a result of PICA, ingesting food items which are not suitable due to being raw or overeating, the effects of polydipsia on his sodium levels and ingesting dangerous fluids. In terms of observation and monitoring GAS’s intake of fluids is monitored to ensure that it does not breach limits set by his doctor. GAS is regularly monitored throughout the day for signs of PICA behaviour. Staff are to observe GAS on a continual basis throughout the day and when he retreats to his room staff are to do 30 minute welfare checks which are recorded. Staff are to check the yard in the morning and throughout the day for any items which may be of risk to GAS. GAS is to be supervised at all times in the kitchen and laundry especially having regard to those items which are no longer subject to restricted access but which potentially cause risk to GAS and others.
In terms of the matters in s 80W(1) I note that GAS’s environment allows him to be monitored through the use of observations windows and the control of his access to water is set up in the staff office. There are no issues under the MH Act. There have previously been restrictive practices in place in regard to restricted access which, as set out above, have been removed with GAS being under close supervision instead. The availability of 2:1 support during the wake shift means that it is possible to minimise the need for restricted access as GAS can be supervised and observed more easily.
In terms of the matters set out in s 80W(2), there are no relevant issues in regard to the findings of those that assessed GAS and each of the stakeholders involved in GAS’s life supported the use of all restrictive practices set out in the PBSP. In terms of support and supervision of staff the Department’s clinician provides training to all regular staff in GAS’s PBSP and Open Minds is to provide training to new staff or liaise with the Department in regard to the PBSP. All incidents of harm are recorded and there are regular meetings with management of Open Minds and Department.
In terms of the HR Act, the right which is being infringed here would be the right to privacy and reputation in regard to not having GAS’s home unlawfully or arbitrarily interfered with in regard to his access to items in and around his home. This interference with GAS’s rights to ensure his safety as a result of his diagnoses of polydipsia, PICA and intellectual disability, has the purpose of reducing his behaviours of harm in accordance with the DS Act. I am satisfied that in the circumstances of there being used in accordance with the PBSP that they are justified in terms of s 13 of the HR Act.
I approve the use of restricted access to objects in accordance with the PBSP.

GUARDIANSHIP

At the time of the last review of guardianship the Public Guardian was continued for decisions in regard to accommodation and seeking help and making representations for GAS in regard to restrictive practices with GAS’s parents, GWA and GRH being guardians for all other personal decisions. The Public Guardian provided a report to the Tribunal for the purpose of the review and stated that they had not been required to make any decisions in regard to GAS’s accommodation over the period of the appointment. That representations have been made in regard to restrictive practices, in particular, during the review of his PBSP to ensure that the ongoing use of containment, seclusion, chemical restraint, restricted access to objects and physical restraint are least restrictive. The Public Guardian stated that they had made representations to ensure that he is safeguarded from abuse, neglect and exploitation which includes liaising with community visitors and advocacy in relation to their findings. The Public Guardian advises that GAS continues to be subject to restrictive practices, pending this hearing, and that alternative appropriate accommodation continues to be explored on behalf of GAS, therefore there appears to be an ongoing need for appointment of a guardian for accommodation and seeking help and making representations in regard to restrictive practices. A representative of the service provider Open Minds advised the Public Guardian that there is an ongoing need for a guardian.
In regard to health care Dr M, in his letter of 2017 stated that GAS has a diagnosis of complex partial epilepsy, with the last fit occurring at the start of 2017 when there was an attempt to his sodium valproate. There was an intent to withdraw it completely but GAS fitted after only a small reduction of the medication. This is therefore a health issue which requires active management.
At the hearing it was identified that there will be decisions required in regard to GAS’s accommodation, health care and provision of services including the NDIS as well as the ongoing decisions in regard to seeking help for and making representations for GAS regarding restrictive practices. His previous appointment of his parents was for all personal matters except in regard to accommodation and making representations about restrictive practices, but having regard to changes to the GA Act and the requirements of the HR Act, it is not appropriate to make appointments for matters unless there is a demonstrated need for decisions to be made for GAS. While it will usually be adequate for an adult’s health care decisions to be made subject to the statutory health attorney regime[10] under the Powers of Attorney Act1998, having regard to GAS’s complex health care needs in regard to his epilepsy it is not sufficient for decisions to be made on an ad hoc basis. GAS’s accommodation is not ideal as it is in a very restricted environment and it is hoped that he will be able to transition to a community setting when he is ready and appropriate accommodation is available. GAS is supported by a service provider under the NDIS and so there are many decisions required to ensure that his services are adequately funded, the funded services are for his benefit and the service providers are properly monitored and accountable for the services they provide. I note that the quality of life that GAS enjoys is greatly enhanced by the level of funding he has from the NDIS to enable 2:1 support on a daily basis for community basis which is a credit to his parents as guardians. While GAS is subject to containment and seclusion the tribunal will be the decision-maker in regard to restrictive practices. The Tribunal though, can only base its decision on the material before it. It is appropriate that GAS has the support of an appropriate decision-maker during the development of PBSP’s and for the monitoring of the use of the restrictive practices approved by the Tribunal.
[10]POA Act, Chapter 4
GWA and GRH are GAS’s parents and they are actively involved in his life and until now have been appointed to make all personal decisions for GAS apart from those in regard to accommodation and restrictive practices. Having regard to the requirement to use the least restrictive option in the GA Act and the requirements of s 13 of the HR Act, I consider that there should only be a guardian for those matters which it is likely that decisions will be required during the course of the appointment for GAS. That then, is those areas mentioned above in regard to accommodation, health care, provision of services including the NDIS and seeking help for and making representations in regard to restrictive practices. It is acknowledged by GWA and GRH and accepted by the Public Guardian that the Public Guardian has specialist knowledge in regard to restrictive practices and in particular where the adult is subject to the most serious restrictions on his liberty in containment and seclusion. I am therefore satisfied in accordance with s 31(6) that there is no one else appropriate for appointment in regard to seeking help for and making representations about restrictive practices than the Public Guardian and so the appointment of the Public Guardian in that regard will continue.

The Public Guardian had also been appointed for accommodation and while GAS’s accommodation has a relationship to his restrictive practices of containment and seclusion, as that is where he is normally contained and secluded, and the decision to change his accommodation will be subject to the need to ensure that he can be safely accommodated in any alternative accommodation; I consider that GWA and GRH are appropriate to make the accommodation decision in consultation all of the other stakeholders including the Public Guardian and therefore the requirements of s 31(6) are met and GWA and GRH are to be appointed to make decisions about accommodation as well those other matters where decisions are likely to be required in regard to health and provision of services including the NDIS. It was agreed at the hearing that GAS’s circumstances are stable and that it is appropriate to make these appointments for the period of 5 years.