MJR
[2017] QCAT 371
•5 October 2017
CITATION: | MJR [2017] QCAT 371 |
PARTIES: | MJR |
APPLICATION NUMBER: | GAA6469-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 26 September 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Clifford |
DELIVERED ON: | 5 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Guardian – Restrictive Practices 1. MRH is appointed as guardian for restrictive practices (general) for MJR 2. The guardian for restrictive practices (general) is to provide an updated Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the order 3. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINSTRATORS, MANAGERS AND RECIEVERS – APPOINTMENT – Restrictive Practices – where physical restraint provided for in Positive Behaviour Support Plan – where Adult has severe Autism, OCD and anxiety - where Adult engages in potentially self-injurious behaviours – where Adult utilises Facilitative Communication – where Adult lacks Capacity for Restrictive Practices – Where Adult can not fully consent to physical restraint – Where Adult is unable to withdraw consent at any time Guardianship and Administration Act 2000 (Qld) |
APPEARANCES: | Adult MJR appeared in person along with BF support person/facilitator, MRH mother, MW manager host service provider, MJK psychologist and LF friend. |
APPLICANT: | MRH – mother/Guardian for Restrictive Practice. |
REASONS FOR DECISION
The Adult, MJR is a 37 year-old man diagnosed with Autism at age 2 years. MJR has also been diagnosed with Obsessive Compulsive Disorder (OCD) and generalised anxiety. MJR is prescribed medication for OCD and anxiety. MJR lives by himself in public housing with 24-hour support. MJR has a history of challenging behaviours including absconding or attempting to abscond without support, attempting to exit a moving vehicle, walking or running towards a road, dropping to the ground. MJR is subject to the Restrictive Practice of physical restraint as outlined in the Positive Behaviour Support Plan (PBSP) dated 1 September 2017. MJR has minimal verbal communication but utilises a combination of communication methods including, sounds, gestures, choice boards and Facilitated Communication.
On 3 April 2017, following an Review of the appointment of a guardian for a Restrictive Practice, the Tribunal appointed MRH, the Adult’s mother, as guardian for Restrictive Practices (RP) (general) in relation to the Adult. The appointment was for a period of six months, unless the Tribunal orders otherwise. The 3 April 2017 order also included specifics directions to furnish information and reports.
Following that Order the Tribunal received:
a)PBSP dated 1 September 2017 along with a Functional Behaviour Assessment Report dated 17 July 2017 from Psychologist, MJK,
b)Speech Pathology Report from LN dated 27 June 2017,
c)Neuropsychological Report from Dr JG dated 26 August 2017,
d)Letter from Dr KDA, treating psychiatrist, with confirmation of current medications, dated 26 June 2017,
e)Letter dated from Dr LA, the Adult’s General Practitioner, dated 20 July 2017,
f)Letter and Statement from MRH, mother, dated 5 September 2017,
g)Letter dated from friend LF dated 15 August 2017, and
h)Statutory Declaration from MJR dated 7 September 2017.
Issues for consideration
The Tribunal may, by order, appoint a guardian for a restrictive practice matter for an Adult if it is satisfied the Adult has impaired capacity for the matter; and that the Adult’s behaviour has previously resulted in harm to the Adult or others; and that there is a need for a decision about the matter; and that without the appointment, the Adult’s behaviour is likely to cause harm to the Adult or others and the Adult’s interests will not be adequately protected. The period for appointment must not be more than 2 years from the day the order is made.
Has MJR impaired capacity for restrictive practices?
Under the law all Adults are presumed to have capacity. Capacity means a person is capable of:
a)understanding the nature and effect of decisions about the matter (in this case the use of the restrictive practice - physical restraint), and
b)freely and voluntarily making the decision about the matter, and
c)communicating the decision in some way.
MJR is a 37 year-old man with a long-standing diagnosis of Autism, OCD and generalised anxiety. MJR attended special primary and secondary schools up until age 18 years. MJR has little verbal communication and reportedly utilises a combination of communication methods, including Facilitated Communication that he commenced when he was around 21 years. MJR has been subject to restrictive practices and appointment of a guardian for RP by order of this Tribunal for a number of years.
The recent Neuropsychologist Report, along with outlining such things as reason for referral, personal and medical history, detailed assessment tests and detailed results, found in summary that MJR’s scores on tests using non facilitated and facilitated communication suggested a low level of functioning.
The Speech Pathologist Report also outlined reason for referral, personal and medical history, communication tools utilised, assessment tests and results with summary of strengths and weaknesses, and a list of recommendations for developing MJR’s communication skills. The report recorded that MJR and his primary facilitator were aware of Speech Pathology Australia (2012) position statement “Facilitated Communication remains an approach with little supportive evidence and a preponderance of evidence that contradicts its use and its use is not recommended”.
Psychologist, MJK’s Functional Report also outlines reason for referral, personal, lifestyle and medical history, behaviours of concern, (‘eloping’ leaving residence without knowledge of supporter, leaving a supporter and walking in a direction to a road and attempting to alight a moving vehicle), triggers such as words or locations, frequency, intensity and duration of incidents between the period of 1 January 2017 – 31 July 2017 and recommendations. In relation to communications skills specifically MJK states MJR demonstrates the ability (through a combination of communication skills) to accurately understand complex conversation. MJK opines MJR has functional numeracy skills and well developed literacy skills.
At hearing MJK advised that his professional association also says Facilitated Communication (FC) is controversial. However MJK opined that without FC, MJR could not be properly assessed. Moreover, MJK opined that on objective testing FC is valid for MJR.
The psychiatrist letter notes that MJR is medicated with Paroxetine 40 mg and Clomipramine 125 mg for OCD and anxiety associated in Autistic Disorders and uses a natural sedative, Melatonin 2mg to help sleep at night. Dr KDA states the medication regime is within therapeutic range and that MJR is not over medicated or sedated.
Through Facilitated Communication at hearing, and in Statutory Declaration, MJR communicated he understands that the use of physical restraint is in place to keep him safe when his OCD and anxiety become overwhelming. MJR’s primary facilitator BF advised the Tribunal that he works with MJR two days per week.
MJR’s mother, and friend LF, at hearing and in their statements opined that since MJR has utilised FC his life changed for the better, that he is able to communicate his choices and preferences, make decisions and interact with others socially. Both state that MJR has had consistent support staffing over the past 5 years.
MJR’s family and support workers are very committed to MJR’s wellbeing and they promote MJR making choices and expressing his views. The health professional reports are all supportive of MJR’s self-expression and achieving autonomy. The family, support team and MJK accept that MJR communicates complex ideas and choices. They all indicated that the frequency of challenging behaviours has markedly decreased since the use of FC, and particularly over the last five years with stability of staff. The Tribunal accepts their belief and observations.
The Speech Pathology and Neuropsychology Reports paint a more cautious view and are mixed and equivocal in their findings. Whilst the Speech Pathologist reported on some validation exercises she undertook, she also highlighted the Speech Pathologist Association’s view on the validity of FC, and made a number of recommendations to developing MJR’s communication skills including ‘fading’ the physical support for keyboard access and developing message passing skills/ a validation portfolio, also noting MJR had developed prompt dependence and that validation task have not been part of his program. The Neuropsychologist Report likewise was equivocal. On the one hand the report recorded MJR indicated his awareness of the potential of injury when restrictive practices are used but had awareness the risk of injury would be greater if restrictive practices weren’t used, but on the other hand finding overall, scores on testing suggested a low level of functioning using FC and non-FC communication.
At hearing MJR indicated through FC, in a one dimensional manner, that he understands restrictive practices are utilised to keep him safe and that staff would understand his challenging behaviours were the result of his OCD. The facilitator utilised ‘shoulder level support’ during the proceeding. The Tribunal noted this involved not insignificant finger and hand movements, pressure and release, along with some verbal prompting. During the proceeding MJR left the room twice, and on one occasion got under the table for some minutes before he exited with the facilitator without incident. He returned to the proceeding shortly after.
Whilst there is a presumption of capacity under the law, the Tribunal is required to be satisfied on the balance of probabilities that a person has capacity for a matter. The understanding of the use of restrictive practices in the form of physical restraint is a complex matter and is the decision-making process. It requires a person to give consent to others, in this case, to utilise physical restraint when necessary to protect the person or others from harm. It is predicated on the development and implementation of a Positive Behaviour Support Plan and requires consent for its use. Consent itself is a complex decision and the Tribunal is satisfied to be fully capable of giving informed consent to others to physically restrain one, a person must not only be capable of withdrawing consent at any time but have real time opportunity to do so.
Based on the PBSP, testimony and reports it is clear to the Tribunal that MJR’s emotions and overwhelming anxiety impact his decision making. It is reported that MJR attempts to exit moving cars and runs or attempts to run towards traffic and goes to ground. He has 24-hour support to keep him safe and to support him in his everyday living, communications, and community access. Notwithstanding MJR’s communication skills may at times be at a higher level when utilising FC (but noting the validation of which is controversial and highly contestable given various health professional bodies and researchers non-acceptance of FC) given the impact MJR’s overwhelming anxiety and OCD has on his behaviour and decision-making capacity, the serious and complex nature of restrictive practices/physical restraint and the necessary concurrent consent to it’s use, the Tribunal has not, on the balance of probabilities, been comfortably satisfied that MJR has capacity in relation to restrictive practices.
The Tribunal is therefore satisfied that the presumption of capacity that is ordinarily accorded to an Adult is rebutted in MJR’s circumstances in relation to restrictive practices.
Need for an appointment of a Guardian
Notwithstanding MJR’s lack of capacity for restrictive practices, the Tribunal also has to be satisfied that MJR’s behaviour has previously resulted in harm to himself or others, and that there is a need about restrictive practices, and that without appointment MJR’s behaviour is likely to cause harm to himself or others and that his interests would not be adequately protected.
The need for appointment is essentially uncontested. All of the recent health professional material, testimony and PBSP outline the challenging behaviours that MJR has previously and more recently engaged in. And, although according to the PBSP and testimony, these behaviours have significantly decreased in frequency, duration and intensity over the last few years, they continue. MJR has a history of absconding without knowledge of his support workers, has left his supporters and attempted to run towards roads and traffic, has attempted to exit a moving vehicle and drops to the ground. The PBSP outlines the process of firstly attempting to reassure, encourage, prompt or redirect MJR when signs of distress are observed. The PBSP also indicates that inter-positioning, (with or without touch), and physical restraint, (take hold of wrists for a maximum of 2 minutes) is to be used if the less intrusive and verbal instructions are inappropriate or ineffective. Consent to implement the Restrictive Practice is required. MRH, the current Guardian for RP has given consent for 12 months from the date of the PBSP.
The Tribunal accepts the report and testimony of attendees as a reasonable overview of MJR’s previous and more recent history of challenging behaviours. The Tribunal notes that the PBSP records that between 1 January 2017 and 31 July 2017, inter-positioning was required on 3 occasions and physical restraint was necessary on 16 occasions. The PBSP records 15 incidents lasted between 1 - 15 minutes, one for 16 - 30 minutes and one for 31 - 45 minutes. On-going consent is required to implement the Restrictive Practice.
The Tribunal is satisfied that MJR’s behaviour has previously resulted in harm, and that consent is required to implement the Restrictive Practice of physical restraint. The Tribunal is also satisfied that without the appointment MJR’s behaviour is likely to cause harm to himself or others, and that his interests would not be adequately protected as his behaviours pose a high risk of significant harm should MJR’s actions not be intercepted.
Proposed appointee/appropriateness
MJR’s mother, MRH, is the current Guardian for Restrictive Practices. MRH is committed to the best interest of her son and indicated that she wishes to continue in the role if the Tribunal found MJR had impaired capacity for the matter. The Tribunal may always consider the Public Guardian as Guardian of last resort if there is no other person willing and appropriate for appointment. However, that is not the case here. MRH is committed, compatible and accessible to MJR, she is heavily involved in his life and the management of his care. MRH is a strong advocate for her son. The Tribunal is also satisfied MRH appreciates the balance between encouragement of self-autonomy and the consideration of protective measures if required. There was no opposition to MRH’s appointment. Those in attendance supported MRH’s appointment.
The Tribunal is satisfied MRH is appropriate for appointment as Guardian for Restrictive Practices (general) for MJR. Unless the Tribunal orders otherwise this appointment remains current for 2 years. Furthermore, MRH as guardian for Restrictive Practices (general) is to provide a copy of an updated PBSP to the Tribunal six (6) weeks prior to the expiry of the appointment. The Tribunal orders accordingly.
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