JH - [2025] QCAT 295 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JH [2025] QCAT 295

PARTIES:

In applications about matters concerning JH

APPLICATION NO/S:

GAA3414-25
GAA6714-25
GAA6715-25

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

Decision 23 July 2025

Reasons 29 July 2025

HEARING DATE:

15 July 2025

HEARD AT:

Brisbane

DECISION OF:

Member Taylor

ORDERS:

1.     The Tribunal approves [Service Provider] using the following restrictive practices in relation to JH:

(a)     containing;

(b)     secluding;

(c)     physical restraining; and

(d)     restricting access of JH to objects

in accordance with the Positive Behaviour Support Plan dated 1 July 2025 subject to any changes notified by the Chief Executive, Department of Families, Seniors, Disability Services and Child Safety.

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

CATCHWORDS:

HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY – where an adult’s history demonstrates behavioural concerns against his carers – 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 – where the adult is the subject of a forensic order under the Mental Health Act which effectively provides for containment and restriction of access to objects - whether there is a need for approval of continued use of restrictive practices, particularly seclusion

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – whether the approval of the use of seclusion as a restrictive practice would infringe on an adult’s right to freedom of movement and/or liberty and security

Disability Services Act 2006 (Qld), s144, s150, s151

Guardianship and Administration Act 2000 (Qld), s80V, s80W, s80X, s114A

Human Rights Act 2019 (Qld), s13, s19, s29

Kracke v Mental Health Review Board (2009) 29 VAR 1

R v Therens [1985] 1 SCR 613

Victoria Police Toll Enforcement v Taha (2013) 49 VR 1

APPEARANCES & REPRESENTATION:

Adult by his representative:

MB – Queensland Advocacy Institute

SK – Queensland Advocacy Institute

Department of Families, Seniors, Disability Services and Child Safety:

DR – Legal Counsel

MD – Principal Clinician

KG – Senior Clinician

REASONS FOR DECISION

The applications concerning JH were heard by me on 15 July 2025. Given the issues as they arose and were discussed during the hearing, at its conclusion I reserved my decision informing the parties I would deliver it on 23 July 2025 given the current approval for the use of restrictive practices expires on 24 July 2025.
That decision was issued on 23 July 2025. These are my reasons for it. 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

JH is a middle-aged man with a diagnosis of autism spectrum disorder, mild intellectual disability, attention deficit hyperactivity disorder, and sexual paraphilia.
At the time of the hearing before me he had access to, and received support under, a National Disability Insurance Scheme package providing him with a service provider organisation charged with his care (the Service Provider). Such included community access services as well as supported living accommodation, both being in circumstances where at times he may put himself and others at risk and so requiring the engagement of restrictive practices by the staff of the Service Provider.
On 24 July 2024, orders were made by this Tribunal approving the Service Provider to use restrictive practices; specifically, containment, seclusion, physical restraint, and restricting access to objects. That approval remained current for twelve (12) months unless otherwise ordered. It thus expired on 24 July 2025. A review of that order is what came before me for determination.
On 13 May 2025, the Mental Health Review Tribunal confirmed a Forensic Order relevant to JH, the conditions of which include inter-alia that he resides at a specific location, and that he must remain in that residence under 24 hours supervision save only for limited approval for community access albeit supervised; and that he not possesses any offensive weapon. (the Forensic Order)
On 26 June 2025, by further orders of this Tribunal, a representative from Queensland Advocacy for Inclusion (QAI) was appointed to present JH’s views wishes and preferences in the review hearing. MB, assisted by SK, both from QAI presented as JH’s advocate in the hearing.
On 1 July 2025, an updated Positive Behaviour Support Plan (the 2025 PBSP) for JH was authorised by MB, Principal Clinician Behaviour Support and Practice Quality with the Department of Families, Seniors, Disability Services and Child Safety (the Department).
On 10 July 2025, SK of QAI provided written submissions in advance of the hearing expressing what is said therein to be the ‘views, wishes, and interests’ of JH in terms of the use of restrictive practices. The substance of those submissions was that this Tribunal should revoke the approval of the use of seclusion on the basis that there is insufficient evidence before the Tribunal to justify such approval. (the QAI Submissions)
It is against that background that the matters came on for hearing before me.

The Issues

The primary issue before me was whether the use of seclusion as a restrictive practice should be ordered. The Department submitted that it was, such being as provided for in the 2025 PBSP. MB submitted that it was not.
MB did not present any argument against the use of the remainder of the restrictive practices being once again approved, namely containment, physical restraint, and restricting access to objects. In that regard, it is apposite to note:
(a)the use of containment was effectively a condition of the Forensic Order; and
(b)as expressed in the QAI Submissions
[JH] recognises that the other restrictive practices of physical restraint and restricted access are necessary due to the conditions of his Forensic Order and his history of emotional dysregulation, to reduce the risk of harm to himself and others.
However, notwithstanding that, it remained a necessity that I be satisfied that the use of such restrictive practices, as provided for in the PBSP, was appropriate.

The Relevant Law

Disability Services Act

Under s 151 of the Disability Services Act 2006 (Qld) (the DS Act), the Service Provider may contain or seclude JH only if:
(a)the containment or seclusion is necessary to prevent JH’s behaviour causing harm to himself or others;
(b)the containment or seclusion is the least restrictive way of ensuring the safety of JH 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 JH 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 JH’s needs are met, by giving JH:
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 JH’s consent.

Guardianship and Administration Act

Facilitating that provided for under s151 of the DS Act, under s 80V of the GAA Act, constituting this Tribunal for the purposes of deciding the matters before it concerning JH, I may give approval for the Service Provider to contain or seclude JH if I am satisfied of the following:
(a)JH 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 JH because:
(i)      JH’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, JH’s behaviour will cause harm to himself or others; and
(c)a positive behaviour support plan has been developed for JH that provides for the containment or seclusion; and
(d)containing or secluding JH in compliance with the approval is the least restrictive way of ensuring the safety of JH or others; and
(e)JH 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 JH’s behaviour causing harm will be reduced or eliminated; and
(ii)      JH’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 JH are appropriate.
In considering whether to give such approval, under s 80W of the GAA Act, as is relevant in this proceeding I must also consider each of the following issues:
(a)the suitability of the environment in which JH will be contained or secluded;
(b)given the existence of the Forensic Order, the views of the authorised psychiatrist responsible for treating JH under the Mental Health Act 2016 (Qld) about the proposed containment or seclusion; and
(c)any strategies, including restrictive practices, previously used to manage or reduce JH’s behaviour that causes harm to himself or others, and the effectiveness of those strategies; and
(d)the type of disability services provided to JH.
Under s 80X of the GAA Act, when considering whether to give a containment or seclusion approval, I may also give approval for the Service Provider to use another restrictive practice in relation to JH in conjunction with containment or seclusion. However, I may only make such an order when I am satisfied of the required containment or seclusion approval matters, and I must also consider the mandatory and discretionary matters (as if a reference in the sections to containing or secluding JH were a reference to using the other restrictive practice in relation him). An order made under this part is taken to be part of the containment or seclusion approval given in relation to JH.

Human Rights Act

Whilst substantively the issues in this proceeding were dealt with under those two pieces of legislation, I also considered the Human Rights Act 2019 (Qld) (the HR Act).
The main objective of the HR Act is to protect and promote fundamental human rights. However, those rights are not absolute, and 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. Two such statutes are the DS Act and the GAA Act. The limitation that arises is that, whilst the relevant provisions therein must be interpreted in a way that is compatible, or 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. This is the approach I adopted in considering the issues in this proceeding and 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 Department provided the following documentation to this Tribunal relevant to the use of restrictive practices by the Service Provider:
(a)The 2025 PBSP, such which included a copy of the conditions attached to the Forensic Order;[1]
(b)An ‘Updated Behaviour Data’ covering the period 1 May 2025 to 30 June 2025;[2] and
(c)A ‘Behaviour Recording Sheet’ for respectively events on 5 July 2025 and 7 July 2025 which gave rise to the use of seclusion of JH.[3]
[1]Doc H52 on the Tribunal Record. It was also marked as Ex 2 in the hearing.
[2]Marked as Ex 1 in the hearing.
[3]Marked as Ex’s 3 and 4 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 JH, particularly seclusion.
For JH, his position was presented via the QAI Submissions, such which were elaborated on via oral submissions from MB. That contained the following submission as it appeared in the QAI Submissions document:[4]
[4]Doc H 55 on the Tribunal Record.
When the restrictive practices review was discussed with him, [JH] advised that seclusion had not been used by his service providers to respond to his behaviour for some time. He queried whether seclusion should still be part of his Positive Behaviour Support Plan because since (sic) it has hardly been used in recent months.
He expressed the view that he would like his quality of life to improve and for the progress he has made since his transition from [previous location to present location], and particularly during the past 12 months, (sic) to be taken into account, (sic) by the Tribunal. He indicated that he would like to feel he is making progress towards a life of greater freedom and autonomy.
…
He is hopeful that the Tribunal might recognise the significant reduction in incidents requiring the use of seclusion over the last year and not approve the on-going use of seclusion at this hearing.
…
[JH] recognises that the other restrictive practices of physical restraint and restricted access are necessary due to the conditions of his Forensic Order and his history of emotional dysregulation, to reduce the risk of harm to himself and others. Nonetheless, he feels positive about the significant reduction in incidents requiring the use of restrictive practices over the past year.
…
Given the above facts highlighting [JH]’s progress and the single use of seclusion of the past year, it is respectfully submitted that the Tribunal cannot satisfy itself in relation to the requirements of s80V of the Act. We submit that a single incidence of the use of seclusion over a 12-month period is insufficient to satisfy the Tribunal that there is a reasonable likelihood that if the Tribunal does not approve the use of seclusion, [JH]’s behaviour will cause harm to himself or others.
It is further submitted that considering the evidence of [JH]’ personal progress in regulating his behaviour’s when he becomes stressed or upset and the single use of seclusion over the period under review, the Tribunal can also not be satisfied that approving the use of seclusion is the least restrictive ensuring the safety of [JH] or others.
The QAI Submissions also contained a very brief and sparse reference to the HR Act, submitting that the approval to use seclusion as a restrictive practice would be, based on the evidence before the Tribunal, inconsistent with the application of the HR Act. MB elaborated on this submitting that the relevant right in issue was JH’s right to liberty and security of person but did not otherwise go into any detail to support the submission further.

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 as they were before me. In doing so, I address in turn the relevant criteria as laid out under s 80V and s 80W of the GAA Act in terms of the questions of containment and seclusion, and then turn to the use of other restrictive practices under s 80X of that Act.

Capacity

On my reading of the QAI Submissions, particularly those parts which I have extracted in these reasons, it seemed to me that JH had a level of understanding as to the nature and effect of the use of restrictive practices related to himself. However once read in conjunction with other material on the Tribunal file, such which I refer to in the paragraphs which follow here, I concluded that whilst JH demonstrated some level of understanding he lacked insight into his conditions and the reasons for his behaviour, such which translated to an absence of understanding by him why the use of restrictive practices is necessary.
The most recent medical information filed with this Tribunal is a Health Professional’s Report of a Dr F, a consultant psychiatrist, who records having last seen JH on 17 January 2024.[5] Therein Dr F records JH’s medical conditions to include ‘pervasive development disorder’, ‘moderate mental retardation’, ‘paraphilia’, and ‘chronic challenging behaviour’ the latter described as including ‘sexually inappropriate conduct and property destruction’. Later therein the Doctor also records this observation:
[JH] has demonstrated ongoing immaturity, impulsivity, obsessional thoughts, paraphilic interest and abnormal sexual behaviour, with no insight into his actions or the impact on others. Although the degree of his offending has been limited, the potential for re-offending remains high. If taken off the Forensic Order he will be an unacceptable risk of harm to the community and himself.
[5]Doc M1 on the Tribunal Record.
In the 2025 PBSP, the following appears in terms of JH:
[JH] has demonstrated a strong need to feel organised and in control; he prefers to know what is happening, how these actions will affect him, [all] (sic) of which will then influence the direction he goes in. As a result, he occasionally struggles with accepting the presence and realities of rules and boundaries in his home environment, particularly if he does not agree with them. He may demonstrate the occasional resistance to the requirement for supervision and support from staff. …
There was also the relevant fact that the timing of the hearing before me was organised specifically at the request of QAI for JH to attend and participate in the hearing via phone. Notwithstanding this fact, when he was called at the start of the hearing he refused to participate choosing instead to go into another room in his house from where his support workers were, they being there to assist him during the hearing.
Whilst that was his choice, it demonstrated to me that if he fully had an understanding of his circumstance and a comprehensive understanding of why restrictive practices were or were not necessary, and the nature and effect of a decision to use them, he would have participated and discussed his views and preferences with me directly, even if for a very short time, and in turn seek to demonstrate that at the very least seclusion was not necessary. But he did not, thus showing me he did not have the necessary level of understanding as to the seriousness, and in turn the nature and effect, of the use of restrictive practices.
Based on these submissions and that fact as demonstrated in the hearing, I found that JH’s level of understanding the nature and effect of the use of restrictive practices is limited at best, he being adversely affected by the medical conditions as they were reported on by Dr F. That in turn led me to conclude that the presumption of capacity JH is afforded under the GAA Act in terms of the use of restrictive practices was rebutted.

Is there a need for containment or seclusion?

As noted earlier herein, JH is subject to the Forensic Order. One of the conditions of that order is a specification of where JH must reside and remain under 24-hour supervision by a minimum of two support workers, subject only to limited community access but remaining subject to permanent supervision. Given the nature of the premises in which JH is directed to reside, effectively this is a containment order. For that reason, an approval of containment by this Tribunal was appropriate.

As to the use of seclusion, it cannot be overlooked that there has been a dramatic decrease in its use as a restrictive practice when compared directly to the equivalent prior 12-month period. That is the case MB sought to make for JH as to why the continued use of seclusion should not be approved.
However, the Department makes the alternative case notwithstanding that dramatic decrease. Within the PBSP the following statements appear related to the use of seclusion:[6]
[6]PBSP pg’s 37 and 38. Note that during the hearing the reference in terms of the ‘circumstances’ to ‘It is the nightshift, between 10pm and 6am’ as it appears in the PBSP was deleted. My emphasis added.
Prior to using seclusion, support staff will immediately implement the reactive strategies as outlines in section 13 of this PBSP and where safe to do so the Physical Restraint strategies as outlined in section 16 of this PBSP.
The circumstances in which seclusion is to be used.
Seclusion may only be used when [JH] is engaging in physical aggression towards others when he is at him and there is a serious, immediate, and imminent risk of harm towards others and:
…
·All reactive strategies for responding to his early warning signs and/or behaviours of harm and/or concern have been reasonably implemented, and he remains escalated;
·He has directed staff to leave his unit …
·He is displaying high level warning signs and/or remains aggressive towards staff, for example, him charging or lunging towards staff after they have withdrawn to another area of his unit to give him space and privacy.
… He has a long history of physical aggressive behaviours towards others in the context of limited ability to regulate his own emotional state and impulsivity. His aggression towards others whey (sic) dysregulated has led to significant physical harm. Secluding [JH] is the least restrictive way of ensuring his and others’ safety with the following considerations:
·Seclusion provides a means for staff to more safely manage his behaviours that present a risk of harm to others.
·Seclusion provides staff with a safe place to retreat when he presents an imminent risk of harm to others.
·Seclusion provides a barrier that limits his ability to harm others.
·Seclusion offers him the opportunity to independently reflect on the issue(s) upsetting him, and to think of a solution or how he can better ask for help.
·Seclusion offers him the opportunity to distance himself from a targeted staff member, which may assist him to calm, and allow for the return to his daily routine.
·If staff do not implement seclusion after they have implemented reactive strategies with no success, and/or [JH] has specifically directed staff to leave his unit, he is then more likely to engage in physical aggression towards staff.
·Seclusion is considered a less intrusive and risky response to [JH]’s behaviour in his him that other restrictive practices, such as use of physical restraint.
The PBSP also contains this relevant passage:[7]
[7]My emphasis added in bold.
A description of the anticipated positive and negative effects on [JH] of using seclusion
Positive: The use of seclusion reduces the risk of physical harm to others by preventing [JH] from further targeting staff with physical aggression in his home. Seclusion allows his health and well-being to be safely monitored by staff when he is targeting them with physical aggression. Seclusion is less dangerous that using physical restraint. Seclusion may help [JH] to maintain his relationships with his staff, by putting some physical separation between them when he is targeting them with physical aggression. Seclusion may support the removal of the antecedent/s which may have triggered the behaviour.
Negative: Seclusion may cause [JH] to feel more isolated. The use of seclusion may increase his feelings of frustration and given him the opportunity to engage in more significant property damage. Use of seclusion on its own is unlikely to improve his behaviour in the long term; it must be used in addition to the positive strategies to effect change. Seclusion restricts his liberties and choices.
I cannot accept the argument pressed by MB as being the correct one. I agree with the observations as they are expressed in the PBSP. As noted in the emphasised parts of the passages I have just extracted, absent seclusion there is an increased risk of physical aggression being engaged in by JH, 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 three reasons.
Firstly, it must also not be overlooked that the Department has appropriately noted the relevant negative effect on JH in the use of seclusion. It is this negative effect that MB sought to have me consider as a relevant factor, and the corresponding restriction of his liberties and in turn a factor which is said to infringe his human right to liberty.
It is here that the provisions of the DS Act, the GAA Act, and the HR Act intersect. Under s 29 of the HR Act, JH is afforded a right to liberty and security. It dictates inter-alia that JH 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, it is the latter provision in s 29 to which I referred in paragraph [39] herein which effectively provides for the limitation under the operation of the DS Act and the GAA Act. Whilst the imposition of seclusion can be said to effectively be the assumption of control over JH’s movement, it is not arbitrary in the circumstances where it is authorised by this Tribunal to be undertaken consistent with the provisions of the PBSP, such having been considered in terms of whether there is an alternative available, an issue I return to shortly.
JH is also 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.[8] 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:[9]
… 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.
[8]Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 at [588] considering the equivalent provisions in the Victorian Charter
[9]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, I do not agree with the submission made by MB that the approval for the use of seclusion infringes on JH’s human rights. To the contrary, in my opinion it supports and enhances JH’s rights, particularly a right to security of person. This is because, as I discuss shortly, 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 PBSP.
Secondly, I do not consider that the fact of only one occasion arising during the previous 12-month reporting period in which seclusion is recorded as having occurred, such being as noted in the PBSP and seemingly also being seized upon by MB, is a sufficient reason not to include the use of seclusion. Whilst it demonstrates that there has been an improvement in JH’s behaviour such that the need to engage the use of seclusion was substantially reduced, it also demonstrates that the potential for the type of behaviour which dictates the need for such a restrictive practice to be engaged in remains a very real potential. That potential was, on the information presented in the hearing, demonstrated very recently by the recorded event on 5 July 2025 which dictated the need engage in seclusion. That records the event in the following manner:[10]
At approximately 10:30 am, [JH] exited his room and slammed his doors. This behaviour continued as he left his common room into the courtyard slamming and kicking doors and swearing incoherently.
Ofer the period from 1030-1035h, [JH]’s behaviour escalated … This was evident by throwing his coffee at [named person] with [named persons] in close support. [JH] continued slamming doors, threw his personal mattress at [named person], threatened to throw rocks, tree branches and sticks whilst continuing to abuse staff.
At approximately 1041h and on two occasions [JH] physically charged at staff, and made multiple threats to punch, kick, and throw big rocks. …
[10]See Ex 3.
This shows a continuing occurrence of physical aggression by JH against his support workers, and circumstances where seclusion was successfully used to defuse the situation.
Thirdly, I return to that which I indicated earlier herein I would, that being whether there is an alternative, such being a query I posed to MB and the Department’s representatives during the hearing. As they were explained to me such was 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 JH.
Whilst the latter would be an authorised practice, given what I say later in these reasons and the orders I have made, it would not be an appropriate alternative. This is because it carries with it the risk of harm to both JH 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.

The PBSP

The PBSP is in my opinion properly and appropriately developed by the Department’s relevant officers. 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 JH been adequately assessed in the development of the PBSP?

I am satisfied that JH has been adequately assessed in the development of the PBSP. Not only has there been input from Dr F, the author of the HPR to which I referred earlier, he being a consultant psychiatrist having most recently engaged with JH on 9 April 2025 together with AP a Forensic Liaison Officer at the Princess Alexandra Hospital,[11] the preparation of the PBSP and thus the corresponding assessment of JH in that preparation has been conducted by KH and MD of the Department, each of whom are Behaviour Support Practitioners. Each of these persons fit within the ambit of a person ‘appropriately qualified’ as provided for under s 149 of the DS Act.

Will JH’s behaviour causing harm be reduced or eliminated?

[11]Seer PBSP pg 4.

Will JH’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 JH 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’. JH’s circumstances are improving and given the extent to which the current PBSP continues to address the issues of JH’s behavioural concerns that 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. However, there is room for improvement such which has been identified therein.
As noted in the ‘Updated Behaviour Data’ which was handed up in the hearing,[12] there is a need to improve the accuracy of data, with staff training having been scheduled to deal with such. Such is something I expect both the Service Provider, and the Department, will be attending to promptly.
[12]Ex 1.

The suitability of the environment in which JH is to be contained or secluded.

As I understand it, JH is presently housed in a purpose-built facility to cater for the needs of persons of which JH is one. It is the location where he is required to reside as provided for under the Forensic Order.
The Department has properly and appropriately included a floor plan of JH’s accommodation as Appendix A to the PBSP, identifying therein the relevant doors which are locked or readily accessible. The PBSP also contains a detailed ‘Procedure for Seclusion’ and ‘Monitoring’ in a manner descriptive of that which is available and used to observed JH both visually and audibly during the times of seclusion.
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 inference, drawing from that which I was provided. It was the HPR of Dr F to which I referred earlier read together with the comment in the PBSP which informed me that Dr F most recently attended the review of JH’s mental health in April 2025 and the fact that the Forensic Order was renewed shortly thereafter. That led me to the conclusion on an inferential basis that the comments Dr F made in the HPR to which I referred remain current. Thus, I took them to be 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 [52]. 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 JH.

As noted earlier, JH is currently a resident in a purpose-built accommodation facility designed to provide for his behaviours of concern. As noted in the PBSP, he receives NDIS funded support via the Service Provider, has two support workers with him 24 hours a day, and he also receives 3:1 support for up to 8 hours per day to participate in community access. 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 and the restriction of access to objects was not in any way challenged by MB as advocate for JH. Nor could they have properly been. They are in effect encompassed at least in part by the Forensic Order.
Both are comprehensively addressed in the PBSP.[13] I accept the content thereof as being correct and appropriate in the circumstances of JH’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 [18] herein.
[13]PBSP pg’s 40 to 50.

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, and the restriction of access to objects, in the care of JH was appropriate.
Whilst the orders I made have the effect of engaging and limiting JH’s rights as noted in the HR Act as I discussed it earlier herein, having considered the findings of fact as expressed herein as to the criteria set out in the GAA Act, in my opinion such a limitation is reasonable and justified, all such being in accordance with s13 of the HR Act. JH 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 this proceeding, 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, and the restriction of access to objects, as restrictive practices to be engaged in as needed by the Service Provider.