MJI

[2010] QCAT 76

CITATION:      MJI [2010] QCAT 76

PARTIES:   MJI

APPLICATION NUMBER:            G13421

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   22^nd February 2010

HEARD AT:   Wacol

DECISION OF:   Ron Joachim – Presiding Member
  Adrian Ashman – Member
  Roxanne Clifford - Member

DELIVERED ON:   23^rd February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   

GUARDIANSHIP

1. That the guardianship order made by the Tribunal on 25 July 2008 is changed by appointing the Adult Guardian as guardian for MJI for all personal matters.

1. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year.

RESTRICTIVE PRACTICES

1. The Tribunal approves the Department of Communities (Disability Services) containing and secluding MJI in accordance with the Positive Behaviour Support Plan dated 15 February 2010 subject to any changes notified by the Chief Executive Department of Communities (Disability Services).

1. The Tribunal approves the Department of Communities (Disability Services) using the following restrictive practices in relation to MJI in accordance with the Positive Behaviour Support Plan dated 15 February 2010 subject to any changes notified by the Chief Executive Department of Communities (Disability Services):

(a)     physical restraint:

(b)     restricting access to objects.

1. Unless the Tribunal orders otherwise, this appointment remains current for four (4) months.

ADJOURNMENT

1. That the hearing of the review of the appointment of The Public Trustee of Queensland as administrator for MJI is adjourned to a date to be fixed and is to be heard on the papers.

CATCHWORDS:                Seclusion, containment, restricted practices, least restrictive way of ensuring safety, forensic order, suitability of environment, appropriateness of interim order, guardianship, separate representative

APPEARANCES and REPRESENTATION:

John Tate, Counsel for the Director of Mental Health
Steven Weston, representative of the Director of Mental Health
Dr Paul White, treating Psychiatrist
Karen Townsend, Service Manager
Dianne Pendergast, Adult Guardian
Daniel Robertson, Legal Counsel for Disability Services
Grazia Catalano, Specialist Response Service
Sharon Monahan, Senior Clinical Specialist Response
Jim Gibney, Separate Representative

Dianne Toohey, Advocate from Speaking Up For You Inc (SUFY)

Reasons for decision

Background

1. MJI lives in prison-like conditions at Wacol.  He is currently subject to a forensic order under the Mental Health Act 2000 (the MHA).

1. He first came to the attention of the former Guardianship and Administration Tribunal in January 2006 when the Tribunal received an application for the appointment of a guardian and an administrator.

1. The Tribunal has conducted several hearings for MJI since that time.

1. The current application before the Tribunal is from the Department of Communities (Disability Services) seeking approval of the Tribunal to seclude and contain MJI and to use other restrictive practices, namely physical restraint and restricting access to objects.

1. The Tribunal also took the opportunity to review the appointment of the Adult Guardian as guardian for MJI.  This appointment was made on 25^th July 2008 in relation to decisions about health care and legal matters not relating to finance or property.

1. Currently MJI lives on the former Basil Stafford Centre site.  The premises are gazetted as an authorised mental health facility under the MHA.

1. MJI’s living unit is staffed 24 hours per day by residential care officers employed by Disability Services.

1. MJI has an intellectual disability and autism spectrum disorder.  He is 23 and has spent many years in care outside of the family home.

1. His mother and siblings live in a regional town in Queensland and he, like them, wish a closer location for his accommodation.

1. MJI’s forensic order is to be reviewed shortly and if it is to be revoked the mental health authorities, and the Mental Health Review Tribunal (MHRT) would be looking to see what arrangements would be in place by Disability Services if this were to occur.

1. The application before the Tribunal is to put in place alternative arrangements such that MJI’s movements can be restricted under the restrictive practices provisions of the Disability Services Act 2006 (The DSA).

The Relevant Legislation

1. Part 10A of the DSA outlines what restrictive practices are and how they can be approved, monitored and reviewed.

1. For the restrictive practices of seclusion and containment the Queensland Civil and Administrative Tribunal (the Tribunal) is the approving authority under section 80V of the Guardianship and Administration Act 2000 (the Act).

1. When other restrictive practices as defined in the DSA are used in conjunction with seclusion or containment, the Tribunal is also the approving authority for the other practices.

1. Sections 80V, 80W and 80X in chapter 5B of the Act, outline the circumstances under which approval can be given. Section 80V outlines the various matters that the Tribunal must be satisfied of. Section 80W outlines matters that the Tribunal must consider when giving an approval to containment or seclusion. Section 80X outlines the various matters the Tribunal must be satisfied of, if approving other restrictive practices.

1. Section 80Y of the Act specifies that the total period for which the approval has effect is 12 months.

1. Prior to the hearing of the application the Presiding member for the Tribunal, appointed Mr Jim Gibney, solicitor from Queensland Advocacy Incorporated, to be a representative for MJI.  This appointment was made under section 125 (1) of the Act.

1. The role of the representative under this section is to represent the adult’s views, wishes and interests.

The Hearing

1. The hearing was conducted at Wacol at the offices of Disability Services on 22^nd February 2010.

20. Those present at the hearing included:

·     John Tate, Counsel for the Director of Mental Health

·Steven Weston, representative of the Director of Mental Health

·     Dr Paul White, treating Psychiatrist

·     Karen Townsend, Service Manager

·     Dianne Pendergast, Adult Guardian

·     Daniel Robertson, Legal Counsel for Disability Services

·     Grazia Catalano, Specialist Response Service

·     Sharon Monahan, Senior Clinical Specialist Response

·     Jim Gibney, Separate Representative

·     Dianne Toohey, Advocate from Speaking Up For You Inc (SUFY)

1. Jim Gibney made submissions that the Tribunal members should visit MJI.  After hearing advice from MJI’s treating Psychiatrist, Dr Paul White, and submissions from the Adult Guardian, the Tribunal decided to visit MJI with Dr White and Jim Gibney.

The Visit

1. The Tribunal first met MJI through a wire mesh.  He was having morning tea alone in his enclosed environment.

1. MJI engaged in discussion with his 5 visitors through the mesh and indicated that we could come into his living area when he had finished eating.  This subsequently occurred.

1. Whilst inside with MJI, he continued to engage warmly and spontaneously with his visitors, inviting Dr White and Jim Gibney to participate separately in a push-up contest and then arm wrestling.

1. MJI showed his visitors through most of his living spaces.  He talked about wanting to go out more often than he currently does and wanting to be closer to his family.

1. His physical environment is appalling.  It is almost totally devoid of any furniture.  It is poorly maintained, barren, and lacks any personalised comforts or items.

1. MJI generally receives his meals through a slot.  He watches television by having the image projected on to a wall in one of his rooms.

1. He has a relatively large yard area devoid of any equipment.  This area is totally enclosed via either a brick wall or fine wire mesh about 4 metres high.  It has been described as a caged area.

Relevant evidence before the Tribunal

1. The Tribunal has a considerable amount of written evidence on its file.  In addition to this parties present at the hearings give oral evidence.  Where this is relied upon it will be mentioned in these reasons.

The forensic order

1. Mr Tate advised the Tribunal that if a positive behaviour support plan (PBSP) was in place for MJI, the Director of Mental Health would recommend the revocation of the forensic order.

1. The Tribunal heard evidence that under the forensic order MJI’s current care arrangements were the responsibility of both Mental Health and Disability Services.

1. The Tribunal was advised that if the forensic order was lifted, the current level of observations could be relaxed, and MJI would not have to be seen twice daily by a doctor.

1. Ms Pendergast noted that the present accommodation was unacceptable and not able to be changed easily under the forensic order, despite her advocating for this since March 2009.

1. Parties agreed that having two bodies involved in managing and supporting MJI’s life was not helpful to him.

1. The Tribunal was advised that the PBSP provided to the Tribunal could be implemented under the forensic order if that order was continued and provided for limited community treatment.

1. The Tribunal heard from Ms Catalano that Disability Services was completing alternative accommodation for MJI to be ready by October 2010.

The Environment

1. Ms Monahan advised the Tribunal that unless MJI is in a secure environment, fenced for his safety, there are significant risks to him and others.

1. She advised that the PBSP she prepared was written with the current environment in mind.

1. Ms Catalano advised that a PBSP does not have to address the environment.

1. The Tribunal was further advised that the PBSP addresses what Disability Services can do to give MJI opportunities to make choices and the skills to talk about his needs.

1. Ms Pendergast described MJI’s accommodation as unacceptable and that despite her advocacy for several months nothing has changed.  She had advised of the difficulties with Disability Services not consulting her about aspects of MJI’s life, despite Disability Services being aware of her appointment as his guardian.

The application for containment and seclusion and the use of other restrictive practices.

1. The Tribunal was provided with a very extensive positive behaviour support plan dated 15^th February 2010.  The principal author was Sharon Monahan.

1. Parties agreed that the written evidence demonstrated MJI has impaired capacity for making decisions in relation to restrictive practices, and in relation to personal matters.

1. The written evidence before the Tribunal shows that MJI has a long history of challenging behaviour that has caused harm to others and that there is a reasonable likelihood that if approval for containment and seclusion is not given, his behaviour will cause harm to others.  Such behaviours include fire lighting, physical aggression, attempting to grab a steering wheel with intention to crash the car, property damage, use of property as a weapon and throwing objects.

1. The PBSP contained evidence of MJI being assessed by a multidisciplinary team of appropriately qualified persons.

1. The plan contained information that the risk of MJI’s behaviour causing harm will be reduced if it is implemented, largely because of the limited access he has to people. 

1. In relation to why containing and secluding MJI was the least restrictive way of ensuring his safety and that of others, Ms Monahan advised the Tribunal:

·     MJI withdraws himself after escalation, refusing to talk to staff, shuts doors and covers up viewing points so staff cannot see him.

·     MJI does not believe he can self-regulate and verbalizes a fear that he might hurt others.

·     He is offered face-to-face contact daily but often declines this due to heightened anxiety.

1. In addition to this the evidence in the PBSP is that MJI “exhibits fear about leaving the ‘safety’ of his caged environment”.  The plan also suggests that seclusion is the most appropriate and necessary measure to prevent the likelihood of outburst behaviour as it allows staff to gain immediate control over severe outbursts of aggressive and destructive behaviours.

1. In relation to how MJI’s quality of life will be improved if the plan is implemented Ms Monahan advised the Tribunal that the PBSP has been developed with the current environment in mind.

1. She also noted that the plan provides for MJI to be given increasing opportunities to make choices, to go on outings, to be offered face-to-face contact and to have contact with his family.

1. The positive features in the plan as noted by the Tribunal also include a range of strategies for MJI to develop his skills in his activities of daily living, gardening, his selection of activities, self-regulation, social communication strategies, meal planning and daily exercise.  The plan also provides for the establishment of a home-like environment, developing problem-solving strategies and engagement in camping and outdoor activities.

1. As to the observations and monitoring, Ms Monahan advised the Tribunal that there were limitations because of the environment and MJI’s capacity to place himself in a non-observable space.

1. The PBSP refers to observation windows to each lounge area and through the hallway doors.  The plan notes there are a few areas where staff have a limited view.

1. As to the suitability of the environment for containment or seclusion, the evidence in the plan is as follows:

“MJI is contained in his usual accommodation where he has access to food and drink, bedding and toilet.  The inside environment is air-conditioned.

MJI lives in a high-security facility.  It has high ceilings (8 foot) concrete walls and is secure.  There is an open lounge area, a bedroom area (without doors), and an ensuite (without doors).  The bathroom fittings are stainless steel.  The walls that are in the wet areas are tiled.  There is no floor covering throughout (except for old torn linoleum).  The yards are surrounded by 12 foot high steel fencing.  There is a secure gate at the rear of the yard, allowing a secure van to enter for community access as required.

There are two table and chair sets bolted to the floor or to concrete.  He has a foam chair and a foam lounge, covered in vinyl.  His television and X-Box games are projected through the observation window on to the wall of the lounge.  In the bedroom, there is a raised wooden bed frame attached to the wall.

One part of his living area can be used as a secure facility, independent of the yard.  Used this way it restricts MJI’s access to the yard.  It has an automatic lock release on the door to the yard, allowing staff to let MJI out to the yard when he has calmed.  Data indicates that MJI will frequently self-seclude after an outburst, and may not talk to his staff or come out to the yard for up to 48 hours.

There is a slot in the fence near the staff room, allowing food and activities to be passed through.  There is a slot in the door, allowing food, drink, clothing, and linen to be passed through.  MJI has access to a toilet.”

1. Ms Monahan advised the Tribunal that the other restrictive practices proposed to be used were physical restraint and restricting access to objects.

1. In relation to physical restraint she advised that this would be used to move MJI from a risky situation to a safer place i.e. containment when escalated.  Staff are trained in the procedure.

1. Ms Monahan advised the Tribunal that MJI needs to be restricted from access to some objects for his own and others safety.  He has a fascination with electricity, batteries, fire, and vehicles.

1. She further advised that he has a history of lighting fires and will do so at any opportunity.

1. Disability Services also requests restriction to kitchen items to prevent likelihood of injury.

Submissions

1. The Director of Mental Health through Mr Tate expressed support for the PBSP and supported the Tribunal’s approval of the applications.

1. The Director also submitted that there should be regular reviews of the plan and its implementation.

1. Disability Services through Mr Robertson submitted that the Tribunal should approve the application.  Disability Services considers that the environment is suitable for the implementation of the plan and suggested a 3 month approval.

1. Disability Services submitted that there will be many trials ahead and the PBSP should be seen as the first step forward.

1. The separate representative, Mr Gibney, submitted that whilst he can see the benefit of only one organisation involved in MJI’s life, he remains uneasy about the environment.

1. Mr Gibney noted that it was essentially because of the environment that the seclusion will continue 24 hours per day.

1. He submitted that the plan continues the abnormal environment and provides little opportunity and encouragement for change.

1. Mr Gibney urged caution in approving the plan and urged the Tribunal to make an interim order so it is not seen to sanction something far from ideal.  In this regard he suggested Disability Services bring a better plan to the Tribunal.

1. Mr Gibney also relied on his earlier written submissions which included:
   
   

   ·     MJI’s desire to reconnect and have greater contact with his family who also desire this

   ·     The apparent lack of consultation with MJI’s family in developing the PBSP

   ·     A need to consider child protection records of the Department of Communities (Child Safety Services)

   ·     “The substantial problem with a model which continues to restrict MJI in a prison-like environment”

   ·     The current PBSP required more refinement and investigation of other models of intervention.

   ·     The PBSP in its present state of development should not be given approval

1. The Adult Guardian, Ms Pendergast, made the following submissions:

   ·     The present situation for MJI is unacceptable.

   ·     This plan offers a first step forward after 4 years of little, if any, progress.

   ·     There is a need to start with the plan which addresses key issues in MJI’s behaviour.

   ·     The dual system of involvement has not helped and gives both organisations the opportunity to not effect change.

1. In an earlier written report to the Tribunal, the Adult Guardian recommended the PBSP be approved.

1. Ms Toohey from Speaking Up For You Inc (SUFY) submitted that she has been providing individual advocacy for MJI since 2006.  She submitted that:

“Restrictive measures have been put in place since MJI was 3 years old.  He has been subjected to the “time out cupboard” which progressed to various forms of containment finally resulting in total seclusions.

What MJI wants is to be supported in a way that will assist him to establish enough self control over his behaviour in the least restrictive setting as possible so that he has an opportunity to live in his own home and continue to learn and expand his social net works.”

Over the last 5 years she has not seen any evidence that this will happen in his present environment.

Tribunal Findings

1. The Tribunal was easily satisfied about most matters in 80 (V)(2) of the Act.

1. The Tribunal was not so easily satisfied about 80 (V)(2)(d), 80 (V)(2)(f)(ii) and 80 (V)(2)(g)

1. These elements are:

   ·     That containing or secluding MJI in compliance with the approval is the least restrictive way of ensuring safety.

   ·     That if the PBSP is implemented MJI’s quality of life will be improved in the long term

   ·     That the observations and monitoring are appropriate

1. The Tribunal also has concerns about the suitability of the environment. The Tribunal does not accept Mrs Catalano’s view that a PBSP does not have to address the environment. Section 123L of the DSA which outlines the components of a PBSP, at subsection 2(h) and (i) clearly expresses a need for environmental considerations. Likewise section 123Z of the DSA outlines further environmental requirements. Moreover, section 80W of the GAAA requires the Tribunal to consider the suitability of the environment when deciding whether to give a containment or seclusion order.

1. The concerns in relation to the above matters arise because of the following:

   ·     MJI’s life is incredibly restrictive.

   ·     Despite extensive resources applied to this young man his quality of life has demonstrably deteriorated over recent years.

   ·     A detailed plan for intervention was developed some years ago by Dr Gary La Vigna and apparently not implemented.

   ·     An absence of any progress in the past 4 years.

   ·     Seclusion is the norm for his service delivery rather than the exception.  That is, he is secluded continuously and is taken out of seclusion on rare occasions.

   ·     The physical environment is such that observation opportunities are somewhat limited depending on where MJI is in his accommodation

   ·     The physical environment has been described by Dr White as intolerable in the PBSP and the Tribunal whole heartedly agrees.

1. The Tribunal considered the submission of the separate representative for the Tribunal to make an interim order.    Section 129 of the Act allows the Tribunal to make an interim order for 3 months if the Tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health, welfare, or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect, by the adult.

1. Mr Gibney’s submissions were that the Tribunal should not be seen to sanction something far from ideal and for the applicant to provide a better plan to the Tribunal, before a full order is made.

1. The Tribunal does not accept his submissions for the following reasons:

   ·     The principal ground for making an interim order as detailed above is not made out.  MJI is not at immediate risk of harm.

   ·     The Tribunal usually makes interim orders in emergency situations without being able to hear all parties

   ·     All parties took the opportunity to place substantial written and oral evidence before the Tribunal

   ·     All parties had adequate notice of the hearing

   ·     The Tribunal conducted a full hearing and considered all the material in great depth and had the opportunity to make a considered decision.

What has convinced the Tribunal to grant the approvals

1. Firstly, the Tribunal, along with all the parties, agree that positive changes are needed in MJI’s life.  This can only come about by a planned approach implemented by a team committed to change.  The Tribunal is satisfied that the plan is a genuine attempt to produce change.  It is very comprehensive and offers a large number of positive strategies.  It deserves to be tried.  The potential exists for an improved quality of life despite the environment.

1. Secondly, the Tribunal accepts the evidence that having two government departments involved in MJI’s life has unfortunately not assisted him.  It is difficult for the Tribunal to understand why two government departments administering Acts with similar principles can not produce positive change for a joint client.  Dysfunctional features of the relationship between Mental Health Services and Disability Services described by the Honourable Bill Carter QC in his report “Challenging behaviour and disability: A targeted response” may well be responsible.

1. Of course, having two departments responsible may continue if the MHRT does not revoke the forensic order.  This is beyond the Tribunal’s scope.

1. It is, within the Tribunal’s powers to make a decision that potentially will have only one agency, namely Disability Services, as the service provider.  By making the order, Mr Tate has told us that a recommendation will be made to MHRT to revoke the forensic order.  If revoked, this should result in more flexibility in MJI’s life.

1. Thirdly, the capacity to make a short-term order gives the Tribunal some confidence that Disability Services will act quickly to ensure the PBSP is implemented and that change will be visible.

1. The fourth factor convincing the Tribunal is the evidence about MJI’s self seclusion after an aggressive act.  He effectively withdraws and refuses contact.  In this regard Disability Services have no control on the level of restriction MJI imposes on himself in the current environment.  In addition MJI is reported to often avoid contact when it is offered to him during the day.  Acknowledging his need to avoid contact seems to be the least restrictive way of ensuring safety.

1. Fifthly, Disability Services gave undertakings to the Tribunal regarding a high level of acceptance of the plan by residential staff and a high level of commitment to implementation.

1. Despite this the Tribunal has some doubts about Disability Services’ capacity to implement the plan.  These doubts arise because of the lack of positive progress in MJI’s life in recent years despite the considerable resources that have been provided for him, and the uncontested evidence of the Adult Guardian regarding difficulties in having Disability Services consult with her.  As a result the Tribunal considered the possibility of making a very short-term order and looking closely at the progress made in implementing the PBSP on review.

1. Sixthly, MJI has been subject to regular observations in recent years despite the limitations in the environment for this.  This has proved adequate.

1. Finally, the Tribunal must consider the environment in which seclusion and containment are occurring.  It is prison-like and far from ideal.  It is spartan.  The best that can be said for it is that it offers protection from the weather, adequate space for exercise inside and out, has adequate heating and cooling, access to toilet facilities, is virtually indestructible and offers MJI some privacy if he wants it.

1. The Tribunal does not have to be satisfied the environment is suitable to grant a seclusion and containment order. Under section 80W of the Act it is a matter for consideration only. The tribunal has considered its suitability. The Tribunal does not find it is a suitable environment but this does not mean an approval cannot be given.

1. The Tribunal urges Disability Services to make whatever enhancements can be made to MJI’s physical environment currently, noting the plan to relocate him to a purpose built facility at Wacol in October of this year.

The review of the appointment of the Adult Guardian as guardian for MJI

1. The review was conducted under section 31 of the Act.  Subsection 2 provides that at the end of the review, the Tribunal must revoke its order unless satisfied it would make an appointment if a new application were to be made.  The Tribunal received a report dated 18 December 2009 from Rachelle McPhillips, Senior Guardian – Positive Behaviour Support Team, from the Office of the Adult Guardian.  In this report she states, “The Adult Guardian is requesting an appointment for all personal matters under the GAA 2000”.

1. At the hearing the Adult Guardian was content to leave the matter in the hands of the Tribunal if the Tribunal approved the application for containment and seclusion.

1. The Director of Mental Health submitted there was a strong basis for the appointment to continue.

1. Disability Services and the Separate Representative also supported the appointment, with Disability Services noting a need for an independent decision made for accommodation.

1. The Tribunal has noted that MJI will soon be offered alternative accommodation at Wacol.  As he will be subject to containment and seclusion he should have someone to seek help and make representations on his behalf.  The future of the forensic order is not completely clear.  Decisions about ongoing psychiatric care and service provision may be required.

1. Considering MJI’s current circumstances, and what the future may hold, the Tribunal considers a plenary appointment is required and will appoint the Adult Guardian as guardian to make decisions about all personal matters.  This, by its very nature, includes seeking help and making representations about the use of restrictive practices.  The appointment will be for one year.