MI
[2012] QCAT 223
•23 May 2012
| CITATION: | MI [2012] QCAT 223 |
| PARTIES: | MI |
| APPLICATION NUMBER: | GAA1364-12 / GAA1367-12 / GAA1368-12 / GAA3215-12 / GAA3216-12 / GAA3217-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 3 May 2012 |
| HEARD AT: | Ipswich |
| DECISION OF: | Les Clarkson, Member Elissa Morriss, Member |
| DELIVERED ON: | 23 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a closure order for MI is dismissed. 2(a). The Tribunal orders that pursuant to s 108 of the Guardianship and Administration Act 2000 publication of any part of a document, oral evidence or submissions before the Tribunal which relate to an incident involving MI on 30 March 2012 is prohibited. 2(b). This non-publication order does not include discussions or the sharing of information between or within: (i) The Department of Communities, Child Safety and Disability Services; (ii) The Centre of Excellence for Behaviour Support; (iii) The Office of the Adult Guardian; (iv) MI’s Separate Representative; (v) Any member of MI’s support network; (vi) Any person the Chief Executive, Department of Communities, Child Safety and Disability Services considers to be integral to the future service delivery and support needs of MI. 2(c). This order remains current for six (6) months. 3(a). The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 the following information/documents are confidential and must not be disclosed: (i) Any part of a document, oral evidence or submissions before the Tribunal which relate to an incident involving MI on 30 March 2012. 3(b). This confidentiality order does not include discussions or the sharing of information between or within: (i) The Department of Communities, Child Safety and Disability Services; (ii) The Centre of Excellence for Behaviour Support; (iii) The Office of the Adult Guardian; (iv) MI’s Separate Representative; (v) Any member of MI’s support network; (vi) Any person the Chief Executive, Department of Communities, Child Safety and Disability Services considers to be integral to the future service delivery and support needs of MI. 3(c). This order remains current for six (6) months. 4. The Tribunal approves Accommodation Support and Respite Services, Department of Communities, Child Safety and Disability Services containing and secluding MI and restricting MI’s access to objects in accordance with the Positive Behaviour Support Plan dated 3 May 2012 subject to any changes notified by the Chief Executive, Department of Communities, Child Safety and Disability Services. 5. Unless the Tribunal orders otherwise, this approval remains current for six (6) months. 6. The appointment of Jim Gibney as Separate Representative for MI under s 125 of the Guardianship and Administration Act 2000 is continued for the duration of the approvals outlined in clause four (4). 7. The Tribunal recommends that Legal Aid Queensland provides a grant of legal assistance to resource the appointment of Jim Gibney as Separate Representative for MI for the duration of the approvals outlined in clause four (4). |
| CATCHWORDS: | Whether limitation orders should be made – where allegations that release or publication of material may cause serious harm or injustice to a person – review of approval of containment, seclusion, and other restrictive practice Guardianship and Administration Act 2000, ss 108, 109, 80ZB, 80V, 80W, 80X |
APPEARANCES and REPRESENTATION (if any):
The Adult Guardian and representatives from that Office
MI, the adult, and family members
Jim Gibney, representative of MI
Officers, clinicians, and carers from the Department of Communities, represented by Daniel Robertson, Solicitor
Representatives from the Community Visitor Program
Advocate from Speaking Up for Yourself
REASONS FOR DECISION
MI (the adult) resides in supported accommodation in south-east Queensland.
On 17 February 2011 the Tribunal appointed the Adult Guardian as his guardian for all personal matters.
On 18 November 2011, the Tribunal approved the use of certain restrictive practices in relation to the adult, namely the use of containment, seclusion, and restricting access to objects. Those approvals were expressed to remain current until 18 May 2012, and in view of their impending expiry, the Tribunal initiated a review of its approvals.
The Adult Guardian also brought applications for the Tribunal to impose certain limitation orders in relation to the review hearing. The orders sought were: closure order, confidentiality order, and a non-publication order.
Prior to the hearing, the Tribunal made a confidentiality order in relation to material filed in the Tribunal since 18 November 2011. [That order was vacated at the start of the hearing – under s 110(2) of the Guardianship and Administration Act 2000 (the Act)].
All applications were heard on 3 May 2012.
The legislation
The relevant legislation in relation to the limitation orders is outlined in ss 107, 108, and 109 of the Act.
The review process generally is outlined in s 80ZB of the Act. Section 80ZB(2) provides that at the end of the review the Tribunal must revoke its approvals unless it is satisfied it would give relevant approvals if a new application for the approval were made. That provision refers the Tribunal to ss 80V, 80W, and 80X, which outline the matters about which the Tribunal must be satisfied before it may give such approvals.
The evidence – limitation orders
The Adult Guardian’s application for limitations orders refers to the Positive Behaviour Support Plan and certain other material before the Tribunal which outline the proposed restrictive practices for the adult, but also provided information about an incident involving the adult on 30 March 2012. That incident has given rise to criminal charges which were mentioned recently in the Magistrates Court, and referred to the Mental Health Court.
The incident was reported in a newspaper article which did not name the adult. However, the Adult Guardian submits that the level of reporting rendered it likely that he could easily have been identified by many in the disability sector.
The Adult Guardian, and adult’s representative, submit that a further reporting of the incident arising out of the Tribunal proceedings will likely have a prejudicial impact on the adult’s rights, including future support arrangements and the outcome of possible future prosecution in relation to the incident.
It is for these reasons that orders were sought to: close the hearing or part thereof; prohibit publication of information; and to withhold from certain parties a document or information before the Tribunal.
No party in attendance objected to the Tribunal making the limitation orders sought by the Adult Guardian.
Neither the Adult Guardian (nor any other party) objected to the presence of any person at the hearing, or to an open discussion of relevant matters. No member of the press was in attendance, and the Adult Guardian advised that, in the circumstances, he did not intend to proceed with the application for a closure order.
Section 114A of the Act prohibits the publication of information about a guardianship proceeding if it is likely to lead to the identification of the adult. If this provision is taken in isolation, it might be argued that there is no need for the limitation orders.
However, the Adult Guardian argues that it is not appropriate to consider the effect of s 114A in isolation. That is because of the earlier publication which, because of the adult’s particular unusual circumstances, is likely to lead to his identification to, at least, a section of the public. The Adult Guardian submits that a later publication of the relevant events as described in the Tribunal hearing will serve to confirm the adult’s identity with certain sections of the public.
In the circumstances the Tribunal makes the following findings in relation to the limitation orders.
The bases for consideration of a limitation order are outlined in s 104, namely:
a) The entitlement of active parties to access documentation or other information which is credible, relevant and significant; and
b) The desirability for hearings to be held in public and to be able to be publicly reported.
Having regard to these considerations, ss 107 and 109 provide that the Tribunal must be satisfied that the respective orders are necessary in order to avoid serious harm or injustice to a person.
All active parties who attended the hearing were entitled to access all documentation and information after the commencement of the hearing.
The subject incident for which limitation orders were sought was not, in the Tribunal’s view, a matter which is critical to the Tribunal’s review of its approvals. That is to say, it is not considered to be relevant and significant to an issue in the proceeding. That is because the incident is simply another example of the adult’s history of various forms of challenging behaviour.
The desirability for hearings to be publicly reported will not therefore be trammelled if the limitation orders apply only to the subject incident.
The relevant legislation also provides that the extent of limitation orders must be only to the extent necessary to avoid serious harm or injustice.
Conclusion – limitation orders
Given that neither the Adult Guardian nor any other party objected to the presence of any person at the hearing, and that the Adult Guardian did not seek to pursue his application for a closure order, the Tribunal was not satisfied that the requirements of s 107 had been met, and it concluded that a closure order was not necessary to avoid serious harm or injustice to the adult.
The Tribunal also concluded that the Adult Guardian’s concerns reflected in the submissions in relation to a confidentiality order and a non-publication order were substantiated. That is to say, the Tribunal was satisfied that, on balance, the release of information or the publication of the subject incident at this point in time may lead to the adult’s identification. This has the potential to impact on any future prosecution and may also result in prejudicing or limiting the prospects of sourcing future service providers for the adult. The Tribunal is satisfied therefore that, on balance, these outcomes may result in the occasion of serious harm or injustice to the adult.
However, the extent of the confidentiality order and non-publication order was initially proposed to apply to all documents and information before the Tribunal which were filed or discussed in relation to the present hearing. However, on canvassing the extent necessary to protect the adult’s interests (as outlined in ss 107 and 109), the parties accepted that the possibility of harm or injustice occurring will be avoided if the limitation orders relate only to the incident in question.
The evidence – Restrictive Practices Approvals
Sections 80V, 80W and 80X of the Act, outline the circumstances in which approval may be given for the use of restrictive practices. Section 80V outlines the various matters about which the Tribunal must be satisfied. Section 80W outlines matters that the Tribunal must consider when giving an approval for containment or seclusion. Section 80X outlines the various matters about which the Tribunal must be satisfied when approving the use of other restrictive practices.
The following evidence was received in relation to the matters outlined in the relevant legislation.
Evidence of health professionals presented to the Tribunal at earlier hearings is to the effect that the adult has been diagnosed variously with XYY syndrome and autism. The most recent report was completed by Professor Gregory O’Brien, dated 4 August 2011. Professor O’Brien refers to diagnoses of XYY syndrome, Autism, and an intellectual disability. Other factors impacting on the adult’s decision-making disability include expressive language difficulties and extreme social anxiety and irritability. In Professor O’Brien’s opinion, the adult is unable to understand and make simple decisions about the use of restrictive practices.
No party at the hearing disputed the opinion of Professor O’Brien, or submitted that the adult’s capacity to make decisions about the use of relevant restrictive practices was not impaired.
The evidence outlines a well-documented history of the adult engaging in a range of behaviours which has placed him and others at serious risk of harm.
A Positive Behaviour Support Plan has been developed for the adult, and a copy was provided to the Tribunal. The plan outlines how the restrictive practices of containment, seclusion, and restricting access to objects are considered to be the least restrictive way of ensuring the safety of the adult and others. In essence, the plan describes how the adult has absconded in the past, and engaged in high risk behaviours; how his aggression has caused harm to support workers; how he has attempted to harm himself; his destruction of property, and how he has used certain objects as missiles. Containment is considered to be the least restrictive alternative to ensure the adult’s safety and the safety of others, and to minimise the possibility of his further involvement with the criminal justice system. Seclusion is considered to be the least restrictive way of ensuring the safety of staff only when the adult’s behaviour has escalated to a point where physical aggression is considered likely. When the adult transitions to new accommodation, seclusion will be used only as a last resort and after other positive strategies have been exhausted. Restricted access to certain objects is also considered to be the least restrictive alternative in view of the fact that the safety of the adult and others has been threatened in the past by the objects in question.
The plan describes the adult’s assessors who were involved in its development. They include: Associate Professor Kim Meyer, PhD in Clinical Psychology; Professor Karen Nankervis, PhD in Planning and Support for people with intellectual disability; Ms Purdey Williams, Bachelor of Speech Pathology. In this regard the Tribunal is satisfied the adult has been adequately assessed, within the meaning of s 123E of the Disability Services Act 2006.
The plan outlines how its implementation will reduce or eliminate the risk of the adult’s behaviour causing harm. The plan also outlines how its implementation will improve the adult’s quality of life in the long term.
In particular, the plan describes the adult’s move to new and more appropriate premises. The adult is able to access the community and the surrounds of his home at regular and frequent intervals with appropriate planning and support. Opportunities for community outings and activities will be presented daily to the adult. Further, as mentioned, the use of seclusion will change to a reactive strategy in emergency situations only. The plan outlines reactive strategies which should be employed before the use of some restrictive practices. Lastly, and significantly, the most recent plan reflects a person-centred approach which is designed to give opportunities to the adult to maximise his potential, to acquire skills and competencies, and to improve his communication skills. It is thus anticipated that there will be a reduction in the frequency of behaviours of concern and thereby the need to use restrictive practices.
The plan describes appropriate observations and monitoring. There is provision for detailed reporting of relevant instances about the use of restrictive practices with oversight by a group of key stakeholders which includes clinicians, a representative of the Adult Guardian, the adult’s representative, staff from the Centre of Excellence, and others concerned with his welfare.
The Tribunal took the opportunity to inspect the adult’s environment – that is to say, the environment to which it is expected the adult will transition in the near future. In essence, the adult will have access to relevant necessities during containment or seclusion. In addition, he will generally be able to be monitored during seclusion. The Tribunal is satisfied that the adult’s proposed new environment is suitable.
Previous strategies and restrictive practices are outlined in the plan. The proposed new strategies reflect a new focus, as discussed. This change in ideology is likely to significantly improve the adult’s quality of life, and is welcomed by the Tribunal and all parties concerned for the adult’s welfare.
Conclusion
The Tribunal concludes that the presumption of capacity to which all Queensland adults are entitled is rebutted in the adult’s case, at least in relation to decisions about the use of restrictive practices.
The Tribunal also concludes that the other matters outlined in ss 80V, 80W, and 80X have been established to the Tribunal’s satisfaction, and that it ought to give approvals for containing and secluding the adult, and restricting his access to certain objects, as outlined in the Positive Behaviour Support Plan.
Orders were made accordingly.
0
0
0