JDW
[2025] QCAT 384
•8 July 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
JDW [2025] QCAT 384
PARTIES:
In applications about matters concerning JDW
APPLICATION NO/S:
GAA8398-25
GAA8399-25
GAA8400-25
GAA8568-25MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
Decision 8 July 2025
Reasons 8 August 2025
HEARING DATE:
8 July 2025
HEARD AT:
Brisbane
DECISION OF:
Member Taylor
ORDERS:
ADJOURNMENT
1. The hearing of the application for review of an Administrator is adjourned part heard to 10 October 2025 at Brisbane at 2:15 PM.
2. This order service as notice of hearing on 10 October 2025.
DIRECTIONS
3. Pursuant to s 155 of the Guardianship and Administration Act 2000 (Qld) the appointment of VW as Administrator for JDW for all financial matters is suspended for three (3) months or until further order of the Tribunal, during which time the Public Trustee of Queensland is taken to be the Administrator for James Douglas Watkin for all financial matters.
4. The Public Trustee of Queensland is to provide a written report to this Tribunal, with a copy to VW, of its actions during this 3-month suspension period:
not later than 4:00PM Friday 3 October 2025.
5. Should the Department of Families Seniors Disability Services and Child Safety wish to make any submissions to the Tribunal as to any observed changes to the behaviour of JDW during the period of suspension of VW as administrator, it is to provide such submissions to the Tribunal with a copy to VW no later than 4:00pm Friday 3 October 2025.
RESTRICTIVE PRACTICES (Containment and Seclusion on own or with other Restrictive Practices)
6. The Tribunal continues the order of 11 July 2024 approving Centacare Community Services using the following restrictive practices in relation to James Douglas Watkin:
(a) Chemical restraint;
(b) Physical restraint;
(c) Restricting access by JDW to objects; and
(d) Containing and Secluding.
in accordance with the Positive Behaviour Support Plan dated 18 June 2025 subject to any changes notified by the Chief Executive, Department of Families Seniors Disability Services and Child Safety.
7. Unless the Tribunal orders otherwise, the approval remains current for twelve (12) months.
DIRECTIONS
8. Should the Positive Behaviour Support Plan dated 18 June 2025 be amended as a result of an updated ‘Classification of Purpose Medication’ from the Medical General Practitioner to James Douglas Watkin, the Department of Families Seniors Disability Services and Child Safety is to provide a copy to the Tribunal within seven (7) days thereafter.
CATCHWORDS:
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS –ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION, ETC – where an adult’s mother is appointed her son’s administrator – where a complaint has been made by her son’s service provider as to the administrator’s failure to pay the requisite accommodation fees – where the administrator asserts the accommodation arrangement is a scam – where the administrator failed to demonstrate a proper understanding of her role as administrator – whether the administrator’s appointment should be continued – where it was considered appropriate to suspend the appointment of the administrator
HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY – where an adult’s history demonstrates behavioural concerns against his carers and the public, particularly children – where he has in the past been subject to restrictive practices – where the extent to which restrictive practices have been engaged in have decreased since the last reporting period – whether there is a need for approval of continued use of restrictive practices
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – whether the approval of the use of restrictive practices would infringe on an adult’s right to freedom of movement and/or liberty and security – where the adult’s exhibited behaviour historically has inter-alia targeted children – whether it is appropriate to consider the human rights afforded children solely because they are children in terms of considering the use of certain restrictive practices against the adult
Disability Services Act 2006 (Qld), s144, s150, s151
Guardianship and Administration Act 2000 (Qld), s5, s6, s11B, s12, s31, s80V, s80W, s80X, s114A, s155
Human Rights Act 2019 (Qld), s13, s19, s 26, s29
Kracke v Mental Health Review Board (2009) 29 VAR 1
PE [2016] QCAT 285
R v Therens [1985] 1 SCR 613
Victoria Police Toll Enforcement v Taha (2013) 49 VR 1WJB v BLZ [2019] QCATA 92
APPEARANCES & REPRESENTATION:
Current Administrator:
VW - Mother
Department of Families, Seniors, Disability Services and Child Safety:
DR – Legal Counsel
CB – Director – Behaviour Support and Practice Quality
GM – Clinician
Interested Persons:
JD – Service Provider
YP – Service Provider
BV – Service Provider
REASONS FOR DECISION
The applications concerning JDW were heard by me on 7 July 2025. At its conclusion I gave my decision on each, it being as noted herein, informing the parties I would deliver written reasons by 8 August 2025. These are those reasons. In satisfaction of s114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other active parties and interested persons are referred to herein in a de-identified format.
Background
JDW is young man with a diagnosis of autism spectrum disorder and asperger’s syndrome, residing in supported independent living accommodation provided by a service provider organisation charged with his care (the Service Provider).
On 9 January 2000, by orders of this Tribunal his mother, VW, was appointed as his administrator on a plenary basis with that appointment subject to a review in five (5) years.
On 11 July 2024, the Service Provider was given approval by this Tribunal for the use of restrictive practices in their care of JDW, namely: containment and seclusion, chemical restraint, physical restraint, and restricting access to objects. That approval remained current for twelve (12) months unless otherwise ordered. It thus expired on 11 July 2025.
On 11 June 2025, the Service Provider raised concerns with this Tribunal about the conduct of VW as JDW’s administrator, particularly the absence of payment of his rent for the accommodation, such being at 8 May 2025 the amount $11,216, and her absence of engagement with them to discuss the situation. As they described it in their correspondence to the Tribunal:[1]
… the persistent failure to ensure payment of rent or engage in any communication regarding financial obligations continues to place JDW’s housing stability and wellbeing at significant risk.
[1]See Doc H 161 on the Tribunal file. References that follow here to other documents on the Tribunal file will be simply the document number.
On 18 June 2025, CB, a Director of Behaviour Support and Practice Quality with the Department of Families, Seniors, Disability Services and Child Safety (the Department) gave authorisation to an updated Positive Behaviour Support Plan for JDW, such which included continued use of the restrictive practices for which the previous approval had been given. (the 2025 PBSP)
On 19 June 2025, VW raised her own concerns with this Tribunal, those being about the continued use of containment and seclusion in the care of JDW, asserting that it does not help him, in her words “to solve his problem”.[2]
[2]H 162.
It was a review of appointment of VW as administrator, and effectively a review of the need for the continued use of restrictive practices, that came before me for determination, such which involved a consideration of those expressed concerns. The reviews were independent of each other. I thus dealt with them separately and so discuss them separately in these reasons.
The Issues
The first issue was solely whether it was appropriate for VW to continue as her son’s administrator, such being considered on the basis that there was no question that an administrator was required.
The second issue was whether the use of the restrictive practices previously approved should be once again approved in whole or in part, with a particular focus on containment and seclusion given VW’s stated concern. The Department submitted that it was, such being as provided for in the 2025 PBSP. VW’s argument was that it was not.
VW did not raise any argument against the use of the remainder of the restrictive practices being once again approved, namely physical restraint and restricting access to objects. However, notwithstanding that, it remained a necessity that I be satisfied that the use of such restrictive practices, as provided for in the 2025 PBSP, was appropriate.
The Relevant Law
Before embarking on a detailed discussion on the issues arising on the applications that were before, I thought it best to offer the following few brief comments on the operation of the relevant legislation which I hope are helpful to any reader of these reasons in understanding why I reached the conclusions I did and gave the orders made.
The Issue of Administration
The primary legislation is the GAA Act. Relevantly, it provides that an adult’s right to make decisions is fundamental to their dignity, and that the right to make decisions includes the right to do so with which others might not agree. It is also premised on the position that if an adult with an impaired capacity to make decisions is to be restricted or interfered with in terms of decision making, it should be done to the least possible extent.[3]
[3]GAA s5.
In that regard the legislation seeks to strike a balance between the right of an adult with impaired capacity to be afforded the greatest possible degree of autonomy in decision making, with the adult’s right to adequate and appropriate support for decision making.[4] Thus it sets out general principles to be applied in any decision making process, including the decision as to whether to appoint an independent decision maker, in this instance such being an administrator.[5]
[4]GAA s6.
[5]GAA s11B.
A person performing a function under the GAA Act in terms of decision making must do so in a way that is consistent with the adult’s proper care and protection, such requiring the principles of substituted judgment to be engaged. That means to make the decision the adult would have made if they had capacity, such to be based on the adult’s views and wishes which must on all occasions be sought and considered to the greatest extent possible, but in circumstances where such is not possible or practical in terms of obtaining any coherent and meaningful input then in terms of any previously expressed views, wishes, and conduct of the adult when they had capacity. Thus, it is not a ‘best interest’ test such that decisions are to be made in what the decision-maker believes to be in the best interest of the adult, but it is a regime that requires consideration of what the adult’s decision would have been if they presently had capacity.[6]
[6]See WJB v BLZ [2019] QCATA 92, [23]-[23].
The proceedings before me concern the review of appointment of an administrator. That being so, I am required to revoke the appointment at the end of the review unless I am satisfied that I would make an appointment if a new application for appointment was to be made.[7] To put it another way, if the evidence before me satisfies the appointment criteria under s 12 of the GAA Act which would be applied if it was a new application before me, then an appointment may be continued or changed.
[7]GAA Act s 31.
In implementing those criteria, I may appoint an independent decision-maker when: [8]
(a)there is no one available to make decisions;
(b)the decisions that are being made on an informal basis give rise to an unreasonable risk of harm;
(c)there is conflict among family members; or
(d)there is conflict between family and a service provider.
[8]PE [2016] QCAT 285, [18]. A ‘guardianship order’ includes an order appointing a guardian or appointing an administrator.
In that regard, to the extent any such change involves a change of an existing appointee, such as discuss later in these reasons being a relevant issue that arose before me, I may make an order removing the appointee only if I consider that person is no longer competent, or another person is more appropriate for appointment.
However, there remains the overriding requirements of s 12 of the GAA Act, namely that I may make a guardianship order only if I am satisfied that: [9]
(a)JDW is of impaired capacity for the matter;
(b)there is either:
(i) a need for a decision in relation to the matter; or
(ii) JDW is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to his health, welfare, or property; and
(c)without an appointment:
(i) JDW’s needs will not be adequately met; or
(ii) JDW’s interests will not be adequately protected.
[9]GAA s 12(1).
The Issue of Use of Restrictive Practices
There are two pieces of legislation that are relevant to this issue.
· Disability Services Act
Under s 151 of the Disability Services Act 2006 (Qld) (the DS Act), the Service Provider may contain or seclude JDW only if:
(a)the containment or seclusion is necessary to prevent JDW’s behaviour causing harm to himself or others;
(b)the containment or seclusion is the least restrictive way of ensuring the safety of JDW or others; and
(c)the containment or seclusion complies with:
(i) a containment or seclusion approval given by this Tribunal; and
(ii) a positive behaviour support plan for JDW developed by the Department (including the stated positive strategies), if the containment or seclusion approval is not given as an interim order; and
(iii) the Service Provider ensures JDW’s needs are met, by giving JDW:
A.sufficient bedding and clothing;
B.sufficient food and drink;
C.access to adequate heating and cooling;
D.access to toilet facilities; and
E.the adult’s medication as prescribed by a doctor.
If the Service Provider complies with these provisions, it is not necessary to obtain JDW’s consent.
· Guardianship and Administration Act
Facilitating that provided for under s151 of the DS Act, under s 80V of the GAA Act this Tribunal may give approval for the Service Provider to contain or seclude JDW if satisfied of the following:
(a)JDW has impaired capacity for making decisions about the use of restrictive practices in relation to himself; and
(b)there is a need for the Service Provider to contain or seclude JDW because:
(i) JDW’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, JDW’s behaviour will cause harm to himself or others; and
(c)a positive behaviour support plan has been developed for JDW that provides for the containment or seclusion; and
(d)containing or secluding JDW in compliance with the approval is the least restrictive way of ensuring the safety of JDW or others; and
(e)JDW has been adequately assessed by appropriately qualified persons, within the meaning of s144 of the DSA, in the development of the positive behaviour support plan for him; and
(f)if the positive behaviour support plan for the adult is implemented:
(i) the risk of JDW’s behaviour causing harm will be reduced or eliminated; and
(ii) JDW’s quality of life will be improved in the long term; and
(g)the observations and monitoring provided for under the positive behaviour support plan JDW are appropriate.
In considering whether to give such approval, under s 80W of the GAA Act, as is relevant in this proceeding this Tribunal must also consider each of the following issues:
(a)the suitability of the environment in which JDW will be contained or secluded;
(b)the views of the authorised psychiatrist responsible for treating JDW relevant to a Forensic Order, such views being about the proposed containment or seclusion; and
(c)any strategies, including restrictive practices, previously used to manage or reduce JDW’s behaviour that causes harm to himself or others, and the effectiveness of those strategies; and
(d)the type of disability services provided to JDW.
Under s 80X of the GAA Act, when considering whether to give a containment or seclusion approval, this Tribunal may also give approval for the Service Provider to use another restrictive practice in relation to JDW in conjunction with containment or seclusion. However, such an order can only be made when the Tribunal is satisfied of the required containment or seclusion approval matters, and that it has considered the mandatory and discretionary matters (as if a reference in the sections to containing or secluding JDW were a reference to using the other restrictive practice in relation to him). An order made under this part is taken to be part of the containment or seclusion approval given in relation to JDW.
Human Rights Act
Whilst substantively the issues in this proceeding were dealt with under those two pieces of legislation, they were also considered with reference to the Human Rights Act 2019 (Qld) (the HR Act), the main objective of which is to protect and promote fundamental human rights.
However, the rights as enshrined therein are not absolute. They may be limited in certain circumstances, but only as far as is reasonable and justifiable. One such set of circumstances is in the operation of other relevant legislation. The limitation that arises is that, whilst the relevant provisions therein must be interpreted in a way that is most compatible with the provisions of the HR Act, the interpretation of that other legislation as it related to the HR Act remains consistent with the purpose and objects of that other legislation.
Two such pieces of legislation are the DS Act and the GAA Act. That being so, this is the approach I adopted in considering the issues in this proceeding as they arise under those statutes in reaching the decisions I did.
Evidence and Submissions
With that being general legislative framework under which I considered the matters in issue in these proceedings, I now turn to the substantive issues on which I reached my decisions. In doing so I start by noting the relevant evidence and submissions before me on which my decisions were based.
The Issue of Capacity
This was a fundamental issue relevant to both substantive issues in the proceedings before me. I thus deal with it separately.
JDW did not appear before me in the hearing. He chose not to, as he was entitled to do. Thus, I was left to decide the issue of capacity based on the documentation that had been filed in this proceeding and the observations and other comments that could be offered by those persons who did appear in the hearing.
The relevant documentary material was found in a health professional’s report and the 2025 PBSP. The health professional’s report was one shown to be authored by AP, a Social Worker, dated 3 July 2024.[10] Whilst it was 12 months old, it remained of assistance in the absence of anything later. It informed me that JDW was diagnosed with autism spectrum disorder, he had an intellectual disability, and that he was often triggered by external influences to engage in violence and aggression. In the 2025 PBSP, these triggers are described inter-alia as having his routines interrupted or changed, unmet expectations (eg requested items form his mother having not arrived), contact with his mother, prevented (either perceived or actual) from accessing a desired object, an opportunity arising such as a door being left ajar, and critically ‘seeing children’.
[10]M8. As I understood it, AP is the same AP noted as the Forensic Liaison Officer for JDW as named in the 2025 PBSP.
I also heard from CB for the Department, and VW, as to what they could impart from their own observations in terms of JDW’s capacity, such being as follows:
(a)CB has known JDW for 10 years and submits that JDW’s presentations before him indicate to him that JDW has no understanding of his circumstances and requisite behavioural control; and specifically in terms of the issue before me regarding the review of an administrator is that JDW has no understanding of financial management.
(b)VW says that JDW cannot understand anything to do with money, that she must budget for him and that he his unable to accept the concept that without budgeting he can run out of money.
I also noted the observation attributed to VW in the Department’s document entitled ‘Additional information for the tribunal to consider’ wherein it records her as having stated:
… [JDW] is a good boy who does not hurt other people, only himself …
and purportedly attributing JDW’s behaviour as being caused by his support staff.
The Issue of Administration
VW expressed her desire to continue as appointed administrator for JDW.[11]
[11]H 162.
I had to hand a copy of the Financial Assessment Report by this Tribunal’s Financial Assessment Team which informed me that from the perspective of that Team’s review of the account information submitted by VW for the period ending 30 September 2024, the accounts were accepted as presented. Thus, at face value it seemed appropriate to continue her appointment.
However, it noted that VW had failed to provide a current list of DJW’s assets and liabilities as previously directed, particularly noting that it appears DJW holds a 2/5 interest in real property, and that an updated Notice of Interest in Land could not be located as having been submitted by VW. There was also the concern raised by the Service Provider that I referred to in paragraph [5] herein as to VW’s failure to have met the rental obligations to which JDW was liable.
Each of these raised questions as to whether it was appropriate.
The Issue of Use of Restrictive Practices
The Department provided the following documentation to this Tribunal relevant to the use of restrictive practices by the Service Provider:
(a)A ‘Containment and Seclusion Report’ dated 18 June 2025 shown to have been authored by CB for the Department and a representative of the Service Provider;[12]
(b)The 2025 PBSP;[13] and
(c)A document entitled ‘Additional Information for the Tribunal to Consider’.[14]
[12]H164 – marked Ex 1 in the hearing.
[13]H165 - marked Ex 2 in the hearing.
[14]H166 – marked Ex 3 in the hearing.
In the hearing, that material was discussed in detail whereby it was explained that effectively, ‘the plan is working’, such being shown by the decreasing frequency in the use of restrictive practices in caring for JDW. As also discussed, as it was recorded in the 2025 PBSP JDW’s behaviour which has previously resulted in harm to himself or others, or there was a reasonably likelihood that it would do so if approval was not given, include inter-alia: banging his head on walls, placing items (particularly medication) in his ears, cutting himself, physical aggression against others by way of hitting and the use of objects as weapons, property damage, inappropriate sexual behaviour, and inappropriate toileting practices.
Discussion on the Issues
With that being the focus of the relevant law, the evidence, and the submissions to be applied in terms of it, I now turn to a discussion on the issues. Once again, the issue of capacity is dealt with separately albeit being an issue falling within each of the two substantive issues for determination.
Capacity
A threshold issue in these proceedings was whether JDW was, at the date of the hearing, of impaired capacity, such being defined in the GAA Act in the following manner:
impaired capacity, for a person for a matter, means the person does not have capacity for the matter.
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.
Such was to be considered in terms of the decisions to be made, namely financial and the use of restrictive practices.
Based on that which was before me in the hearing, as I noted it in paragraphs [32] and [33] herein, I concluded that JDW lacked insight into his conditions and the reasons for his behaviour. This translates to an absence of understanding by him why the use of restrictive practices is necessary. Thus, he is being unable to understand the nature and effect of a decision to use restrictive practices, alternatively to be able to freely and voluntarily make decisions about such a matter. I also accepted that he had no understanding as to the nature and effect of decisions about financial matters.
I reached these conclusions and findings on the basis I was satisfied he was adversely affected by the medical conditions as they were reported on by AP. That in turn led me to conclude that the presumption of capacity JDW is afforded under the GAA Act in terms of both financial matters and the use of restrictive practices was rebutted.
Administration
I was in no doubt that there was the current and continuing need for financial management and oversight in terms of JDW’s affairs. On the material before me he has property interests of around $110,000 and cash at bank of around $130,000. His sole income is a disability pension from which he must meet his expenses including that which is payable to the Service Provider, such which as noted above has not been paid. Moreover, he is unable to take care of those aspects of his life by himself, even with appropriate support. That being so, he requires the appointment of an external decision maker in that regard.
The relevant issue however was - who should that appointee be? As I noted it earlier, VW expressed her desire to have her appointment continued, but there were the competing concerns raised by the Service Provider that I had to consider.
This was the subject of extensive discussion between VW and me during the hearing. It is not necessary for me to recite in detail the content of that discussion. It is sufficient to note that it demonstrated to me an absence of understanding by VW of her role as her son’s administrator. Her stated reason for not making the requisite payment to the Service Provider was that, in her opinion, he should not be charged rent for the accommodation because it was the government who placed him in that accommodation, it being a government facility. This was even though she signed, as the administrator, an agreement in terms of that accommodation which expressly provided for the payment of a charge by the Service Provider. In that regard she stated that she thought the whole thing “was a scam”.
She also demonstrated to me an absence of understanding and confusion about JDW’s entitlements under the NDIS, such effectively being an issue in the purview of a guardian albeit one which at times can overlap with administration, and rent assistance that he might otherwise be entitled to through Centrelink. This left open the possibility that she might not be taking the correct and sufficient steps to ensure that all JDW’s financial entitlements are being accessed.
Additionally, and of somewhat greater concern, was that reported by CB in terms of observations by the Department’s representatives. As he explained it, VW may be the source of anxiety being experienced by JDW, which has in the past led to an increase in his adverse behaviour.
Finally, there was also the fact, as it came out in the hearing, that VW lives in the family home of which JDW is now a 40% part owner. That being so, it is entirely unclear as to what, if at all, has arisen or now exists in terms of a conflict (if any) between VW’s own interests in terms of that house and her function as JDW’s administrator in terms of managing his interests in that house, more specifically in meeting the requisite costs of maintaining that property. When I questioned VW about this, she could not answer me in any meaningful way with her merely repeating that it was her family home and asking why she could not live in it. That however was not the issue. Rather the issue at hand was to identify any potential conflict. From my engagement with VW on that issue she demonstrated to me that she had no understanding or comprehension of the concept of same.
For these reasons, in particular the issues of her being an apparent source of anxiety for JDW, and her apparent failure to understand the issues of that which was payable under the agreement in terms of JDW’s accommodation, and any rent assistance, I considered that she was not appropriate presently to continue as JDW’s administrator. However, I did not reach the point of concluding she was not appropriate under any circumstances. The issues presently being experienced may simply be one of a lack of VW’s knowledge and her confusion or failure to understand what can be done for JDW.
All that being so, it seemed to me that the appropriate way forward was to exercise the discretion afforded this Tribunal under s 155 of the GAA Act and suspend her appointment for three months, such being based on an apparent lack of competency, thus putting the Public Trustee of Queensland into the position of JDW’s administrator for that period. During this time the issues of unpaid rent, rent assistance, and any other financial issues such including any potential conflict in terms of the house, can be addressed and hopefully resolved. Simultaneously, an assessment hopefully can be done to ascertain whether removing VDW from being in a position of managing her son’s financial affairs, and thus possibly diffusing the associated tension and anxiety for JDW that has been seen in the past to arise from same, is a mechanism that reduces the occurrence of the associated behaviour seen in the past.
Such an approach then dictated an adjournment of the review of VDW’s appointment as administrator, to be reconvened at the end of the three-month suspension.
Relevant orders were made to that effect.
Restrictive Practices
· Is there a need for containment?
As noted earlier herein, JDW is subject to the Forensic Order. A copy of that Order was not before me. It should have been. The only reference to it in in terms of that which it provides for, which I could find in the material that was before me relevant to the issue of containment, is that JDW is to “reside at a place approved in advance in writing by the treating psychiatrist”.
Whilst for the purposes of maintaining a degree of confidentiality for JDW in the context of that provided for under s 114A of the GAA Act, it is not appropriate that I name in these reasons that place, but as it was identified before me I know it to be a place where persons presented with the challenges JDW is faced with commonly reside under forensic orders, it being a place purposely designed and constructed to provide for containment. I infer thus from those facts that the Forensic Order provides effectively for containment. Accordingly, the need for the use of containment should not be questioned.
However, if I am wrong about that, the following is to be noted as it appears in the 2025 PBSP:
Containment is used to ensure that [JDW] does not access the community without appropriate support and planning.
Containment is considered the least restrictive means of ensuring the safety of [JDW] and others because:
.[JDW]’s and other’s safety is at risk if he is not contained due to his potential for physical aggression and sexually disinhibited behaviour towards others, in particular, children when in the community.
.[JDW] may escalate swiftly with few visible triggers and therefore requires constant supervision when he is out in the community. On previous occasions, when [JDW] has absconded from staff supervision, he has smashed shop windows and, on one occasion, picked up an unknown child to smell their armpits. ….
.[JDW] is at risk of harm from members of the community in response to his escalated behaviour and his behaviour towards others, particularly children, if he not contained and supported appropriately.
.[JDW] continues to express views to Departmental Clinical staff and [Service Provider] management staff that he wishes to engage with children. … This has been consistent for the last 3 review periods, with reports of [JDW] making comments that he wishes to leave staff support, enter the community and find children in order to pick them up and smell their armpits.
These reports are sufficient to show me that containment is a necessary practice to be engaged in for the protection of both JDW and others who may at some point in time encounter him.
· Is there a need for seclusion?
This can be answered once again by reference to the 2025 PBSP. The following is extracted from it:
Seclusion is considered the least restrictive means of ensuring the safety of [JDW] and others with the following considerations:
. Seclusion provides a safe means of staff gaining control over [JDW]’s behaviours that present a risk of harm to others.
. Seclusion provides staff with a safe place to retreat when [JDW] presents an imminent risk of harm to others.
. Seclusion provides a barrier which limits [JDW]’s ability to assault others or place himself in a potentially more harmful situation.
. [JDW] requires 2 staff to support him in his home at all times. [JDW] is capable of empowering a single staff member and previously [has] (sic) taken the keys from a staff member, locked the staff in the villa and absconded.
. …
. Seclusion is considered a less intrusive and dangerous response than other restrictive practices, such as use of physical restraint.
The PBSP also contains this relevant passage:[15]
[15]My emphasis added in bold.
A description of the anticipated positive and negative effects on [JDW] of using seclusion
Positive effects
The use of seclusion minimizes the risk of physical harm to others and is less dangerous that using physical restraint. Seclusion may help [JDW] to maintain his relationship with his support staff. Seclusion may support the removal of the antecedent/s which may have triggered the behaviour.
Negative effects
The use of seclusion may increase [JDW]’s feelings of frustration and give him the opportunity to engage in more significant property damage. Use of seclusion on its own is unlikely to improve [JDW]’s behaviour in the long term; it must be used in conjunction with the positive strategies …
Based on this material, I cannot accept the argument made by VW as to the use of seclusion not assisting JDW. Nor can I accept there is any substance in the view she had expressed as noted in the Department’s material that JDW does not hurt anybody only himself. I agree with the observations as they are expressed in the PBSP as I have extracted them herein. Absent seclusion there is an increased risk of physical aggression being engaged in by JDW, and in turn seclusion is less dangerous that physical restraint being engaged in, an alternative to which I return later herein. I reached that conclusion for two reasons.
Firstly, it must also not be overlooked that the Department has appropriately noted the relevant negative effect on JDW in the use of seclusion. It is this negative effect that I infer VW bases her assertions on. In my opinion there is no substance to that argument. Whilst there is some negative effect, that effect is far outweighed by the positive effect that seclusion has.
Secondly, I do not consider there to be a relevant and appropriate alternative, such being either the unauthorised use of seclusion, which should prompt a review of the orders given by me and thus may in turn result in an order approving the use of seclusion being given, or the use of physical restraint against JDW. Whilst given what I say later in these reasons and the orders I have made the latter it would be an authorised practice; it would not be an appropriate alternative. This is because it carries with it the risk of harm to both JDW and his carers when such restraint is being engaged in, such as recognised in the PBSP as I have referred to it earlier herein. Physical restraint does not replace seclusion.
For all the reasons, the ability for the Service Provider to lawfully use seclusion is necessary. Accordingly, an order was made once again approving the use of seclusion.
The PBSP
The PBSP is in my opinion properly and appropriately developed by the Department’s relevant officers. Subject only to the observations I make below in terms of assessment of JDW in its preparation, in all respects I am satisfied that it complies with s 150 of the DS Act.
Is Containment or Seclusion the Least Restrictive Option
For the reasons I have already given in my discussion on the need for containment and seclusion, I am satisfied that each of these measures are the least restrictive options.
Has JDW been adequately assessed in the development of the PBSP?
Subject to two observation I make herein, I am satisfied that JDW has been adequately assessed in the development of the 2025 PBSP.
The 2025 PBSP is shown as having been authored by CB, whose qualifications are set out therein, such being sufficient to satisfy the requirements of s 149 of the DS Act. The report also contains the identification of all persons consulted in its development and preparation, and the names of the assessors and type of assessment performed.[16] I am satisfied that the qualifications of all those persons also fit within the ambit of persons ‘appropriately qualified’ as provided for under that s 149.
[16]See Sections 3 and 6 therein.
The first observation I make is that, whilst for the purposes of this proceeding I accepted that such in turn was sufficient to satisfy the requirement of a ‘multidisciplinary assessment’ as required under s 149(4) of the DS Act, in my opinion to ensure unequivocal compliance with s 149 of the DS Act it seems to me that it would have been prudent to have two persons to sign off as assessors of JDW in terms of containment and seclusion, and that such be expressly recorded within the body of the 2025 PBSP document.
The second observation is that there is a question remaining to be addressed concerning the use of chemical restraint, namely the issue of obtaining an updated ‘Clarification of Purpose of Medication’ given, as I was informed during the hearing, that there has been a recent change in JDW’s treating General Practitioner Doctor. This was not fatal to an acceptance of the 2025 PBSP, it merely dictating for completeness an order being made addressing the possibility of a change and thus the need for a change to the 2025 PBSP.
Will JDW’s behaviour causing harm be reduced or eliminated?
Will JDW’s quality of life improve in the long term?
The simple answer to each of these questions is ‘Yes’, such being demonstrated by the reported reduction in the use of restrictive practices against JDW when compared with previous reporting periods and earlier behaviour support plans. As I noted it earlier herein based on my discussion in the hearing with the Department’s Officers, ‘the plan is working’. JDW’s circumstances are improving and given the extent to which the 2025 PBSP continues to address the issues of JDW’s behavioural concerns it is open to be, at the very least, hoped that it should only continue to improve.
Are the observations and monitoring provided for under the PBSP appropriate?
The extensive reporting which is evident on the material before me indicates a relatively appropriate level of observation and monitoring being engaged in.
The suitability of the environment in which JDW is to be contained or secluded.
As I discussed it earlier herein, on my understanding JDW is presently housed in a purpose-built facility to cater for the needs of persons of which JDW is one. The Department has properly and appropriately included a floor plan of JDW’s accommodation as Appendix A to the 2025 PBSP, identifying therein the relevant doors which are locked or readily accessible. The 2025 PBSP also contains a detailed ‘procedure for containment, including observations and monitoring’ and a ‘procedure for seclusion, including observations and monitoring’ in a manner descriptive of that which is available and used to observed JDW both visually and audibly. Based on this information, I am satisfied that the accommodation in which he is contained, and may be secluded, is in all respects appropriate.
The views of the authorised psychiatrist under the Forensic Order
I was not provided any documentation shown to have been authored by the authorised psychiatrist under the Forensic Order. I should have been. This is an issue for the Department to take note of and ensure it addresses with clarity and certainty in future hearings on this type. However, the absence of it in the hearing was not, on this occasion, fatal to a determination of the matters before me. For the purposes of this proceeding, I was left to deal with it by way of drawing from that which I was provided.
The relevant references were to be found in Section 6 of the 2025 PBSP and the Department’s document entitled ‘Additional Information for the Tribunal to Consider’, namely:
(a)In the former there is a reference to an assessment and report by a Dr F – Consultant Psychiatrist who is said to have produced a ‘Clinical Report – Forensic Order (Disability) Review - MHRT’; and
(b)In the latter there is a reference once again to AP, the Forensic Liaison Officer; whom is not the requisite psychiatrist, but is recorded therein to have stated:
… the treating team continue to support the restrictive practices currently in place. [JDW] still presents a significant risk of harm with his current behaviour both when in the community and at home.
I took these comments to be a representation of the requisite views, such which support the continued use of the relevant restrictive practices.
Strategies previously used and the effectiveness thereof.
This is related to and aligned with that which I said earlier herein in paragraph [72]. The plan is working. Nothing more need be said other than it shows that the strategies previously used and provided for continued use under the PBSP are effective.
The type of disability services provided to JDW.
As noted earlier, JDW is currently a resident in a purpose-built accommodation facility designed to provide for his behaviours of concern. As noted in the Department’s ‘Additional Information …’ document, he receives support via the Service Provider at a 2:1 ratio when contained at the accommodation and at 3:1 when he accesses the community. Notwithstanding this level of support, the use of restrictive practices remains necessary as part of that support, its availability working in conjunction with the support provided.
The use of other restrictive practices
The use of physical restraint, chemical restraint, and the restriction of access to objects was not the subject of any extensive discussion during the hearing. Nor in my opinion did they need to be. They are each comprehensively addressed in the 2025 PBSP.[17] I accept the content thereof as being correct and appropriate in the circumstances of JDW’s behaviours of concern that I have already discussed relative to containment and/or seclusion, such being in the manner provided for under s 80X of the GAA as I discussed in paragraph [25] herein.
[17]PBSP pg’s 39 to 49.
Conclusion
For all the reasons I have discussed herein, I was satisfied on the material before me to the extent I have referred to it herein, and the oral submission made to me during the hearing, that the continued use of restrictive practices, namely containment, seclusion, physical restraint, chemical restraint, and the restriction of access to objects, in the care of JDW was appropriate.
That being so, in conclusion all I need to is return to the relevance and application of the HR Act and make a few further observations relative thereto.
In considering the use of restrictive practices, particularly containment and seclusion, the provisions of the DS Act, the GAA Act, and the HR Act intersect. It is particular this is so when considering the right enshrined under s 29 of the HR Act, namely the right afforded JDW to liberty and security. Such right dictates inter-alia that JDW must not be subjected to arbitrary detention and that he must not be deprived of his liberty expect on grounds, and in accordance with procedures, established by law.
As was observed by the Canadian Supreme Court in R v Therens [1985] 1 SCR 613 when considering the Canadian Charter of Rights and Freedoms, deprivation of liberty need not involve actual physical restraint, rather it may be sufficient that someone assumes control over the movement of a person. In Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at [199] to [201], Tate JA observed that the determination of whether the deprivation of liberty is ‘arbitrary’ will likely depend on whether it is disproportionate or unjust, with such being considered by reference to whether an alternative is available.
Considering these two authorities, whilst the imposition of any of the restrictive practices which were considered in this proceeding, in particular containment and seclusion, such can be said to effectively be the assumption of control over JDW’s movement. But it is not arbitrary in the circumstances where it is authorised by this Tribunal to be undertaken consistent with the provisions of the 2025 PBSP, such having been considered in terms of whether there is an alternative available as I discussed earlier.
In addition, JDW is afforded a right to freedom of movement under s 19 of the HR Act, such having been held to be closely related to the right to liberty protected under s 29 of the Act. [18] But such must also be read and considered in terms of what the UN Human Rights Committee has said relative to restrictions on freedom of movement, namely: [19]
… it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.
[18]Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 at [588] considering the equivalent provisions in the Victorian Charter
[19]General comments adopted by the Human Rights Committee under article 40, paragraph 4, of the International Covenant on Civil and Political Rights at [14] and [15] – UN CCPR/C/21/Rev.1/Add.9 - 1 November 1999.
In my opinion, applying that which I have referenced in these paragraphs as to the interpretation of the relevant provisions of the HR Act, it cannot be said that the approval for the use of restrictive practices infringes on JDW’s human rights. To the contrary, in my opinion it supports and enhances JDW’s rights, particularly a right to security of person. This is because, at least in terms of seclusion and to some degree the use of restricting access to objects and the use of chemical restraint, it provides an alternative to the use of physical restraint. It is a proportionate restrictive measure, the reasons for the use of which having been carefully considered and addressed in the preparation of the 2025 PBSP.
There is one further aspect of the relevance of the HR Act which in my opinion is appropriately commented on given the facts as they were presented to me in these proceedings. It concerns the behaviour exhibited by JDW towards children. Such is a relevant fact to a competing right as enshrined in the HR Act, such being the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[20] Whilst the primary focus in these proceedings was JDW’s rights, in my opinion such rights of children are permissibly considered by this Tribunal in terms of restrictive practices to be engaged in against JDW given that the consideration of the use of such extends beyond merely JDW to the extent to which he may harm others, such including children.
[20]Ibid s 26.
Whilst the orders I made have the effect of engaging and limiting JDW’s rights as noted in the HR Act, having considered the findings of fact as expressed herein as to the criteria set out in the DS Act and the GAA Act, and for the reasons I have just given as to the relevant interpretation of the provisions of the intersecting legislation, in my opinion such a limitation is reasonable and justified. Such is consistent with s13 of the HR Act.
JDW is entitled to adequate support services to enable him to live as independently as possible, such being consistent with a free and democratic society based on human dignity, equality, and freedom. The decisions I reached in these proceedings, and the orders I made, are in my opinion the least restrictive options consistent with that entitlement.
For all these reasons reason, an order was made approving the use of containment, seclusion, physical restraint, chemical restraint, and the restriction of access to objects, as restrictive practices to be engaged in as needed by the Service Provider, together with a corresponding order for the provision of an updated PBSP once the Clarification of Purpose of Medication is updated.
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