MK
[2012] QCAT 232
•1 May 2012
| CITATION: | MK [2012] QCAT 232 |
| ADULT: | MK |
| APPLICATION NUMBER: | GAA7478-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | R Joachim, Member |
| DELIVERED ON: | 1 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for the appointment of a guardian for restrictive practices for MK is dismissed. |
| CATCHWORDS: | Guardianship – Restrictive Practices – where adult has capacity – whether behaviours have caused harm – whether use of wheelchair can be characterised as transportation Disability Services Act 2006, s 123H Bucknall v Guardianship and Administration Tribunal and Ors(No 1) [2009] QSC 128 |
APPEARANCES and REPRESENTATION (if any):
| PARTIES: | SK, Applicant GM, proposed Guardian PR, service provider |
REASONS FOR DECISION
MK is a young woman who lives with support from a non government service provider, Centacare, who provide services to people with a disability.
MK is now in her thirties although at the time of the hearing on 11 April 2012 she had not quite reached her birthday.
The Tribunal received an application in relation to MK from SK, a support coordinator with Centacare. The application was received by the Tribunal on 29 August 2011 and sought the appointment of MK’s mother, GM, as guardian for restrictive practices for MK.
Centacare has been providing residential care for her for over 16 years. MK lives in a duplex arrangement that she shares with 2 co-tenants.
The restrictive practice in question has been identified as mechanical restraint. When she was 11 years old MK suffered an acute brain injury at the same time as she contracted encephalitis. She currently has severe post hertetic encephalomalacia and this is thought to be the cause of her deteriorating mobility. She also has epilepsy. There is well documented history of MK rapidly exiting her wheelchair and falling over or crashing into walls or furniture causing bruises and contusions. The restrictive practice sought to be used is the use of a seatbelt style device with a cover over the seatbelt buckle.
The relevant section of the Guardianship and Administration Act 2000 that applies in this matter is section 80ZD. This section provides that the Tribunal may appoint a guardian for a restrictive practice matter if the Tribunal is satisfied about various matters. The first matter the Tribunal needs to be satisfied about is whether MK has impaired capacity for making decisions about the use of the restrictive practice. Capacity is defined in schedule 4 of the Act.
The Tribunal had a report from Dr W dated 9 August 2011. Dr W is a General Practitioner who has known MK for 2 years. In his report he stated that MK would not be able to comprehend information on which to base decisions and make a decision about the use of restrictive practices.
The Tribunal has received a copy of an Enduring Power of Attorney which was executed in June 2006 by MK appointing her mother as Attorney for both personal and financial matters. The information provided by Dr W would raise issues about whether MK had the ability to execute such a document.
At the hearing the Tribunal was advised by MK’s mother that she has retained a level of information and comprehension that she had obtained during the first 11 years of her life. This was supported by representatives of Centacare who indicated that MK can understand some information on which to base decisions, that she verbalises very softly but is able to understand when people take their time explaining and waiting for MK’s response. In relation to the Enduring Power of Attorney, GM advised the Tribunal that this was carefully explained to her by the lawyer and MK appeared to understand the consequences of the document.
The Tribunal also heard evidence at the hearing that MK is aware that the seatbelt is required for her safety, that she does not object to the use of a seatbelt and that she no longer gets out of the wheelchair without the seatbelt being applied. The Tribunal formed the view that, in respect of the use of the seatbelt to ensure MK’s safety, she did have an understanding of the nature of the decision and the effect of the decision. That is, that the seatbelt was there to ensure her safety so that she did not fall out. She does not object to its use and she waits for it to be applied.
At this point the Tribunal would normally dismiss the application because the threshold issue of lack of capacity cannot be overcome. However, a subsequent issue was raised with the Tribunal that MK has absent seizures that impact on her decision making at a particular point in time. When she has these seizures she is unable to make decisions for some time. These occur reasonably regularly.
The dilemma then for the Tribunal is whether or not MK can give a consent to the use of the seatbelt and buckle at a time when she lacks capacity during and after the absent seizures. Is it sufficient for MK to give consent to the practice occurring when she is not having absent seizures such that this consent carries over to occasions when she does not have the ability to make decisions. When she is not in a position to give consent can her consent be implied for those occasions?
Does consent have to be given each time the harness and buckle are used?
MK is able to give consent when she is not having or recently had an absent seizure.
It is arguable that this consent continues when she requires the device when she has the seizure and needs to be strapped in for transportation in the wheelchair. This is especially so if MK has not revoked her consent, which event has never occurred.
On the other hand, if MK is incapable of revoking her consent, can the original consent be taken to be in force?
This is akin, somewhat, to a person consenting to anaesthesia and an operation. Once under the anaesthetic, the person is unable to revoke the consent for the operation, and it proceeds.
In Bucknall v Guardianship and Administration Tribunal and Ors (No.1) [2009] QSC 128, Byrne SJA concluded that once the Tribunal found an adult lacked capacity for financial matters, “it would be a nonsense if an administrator had to give effect to … the presumption of capacity” principle; and further “an administrator whose appointment depends upon the determination that the presumption had been rebutted could scarcely set about applying it in making decisions”.
Applying this in reverse, if the Tribunal finds an adult has capacity for a matter, does a carer need to explore this each time they seek to carry out a function of care relating to the matter. If a temporary incapacity exists, and it involves a matter of safety to put into effect a decision that the adult is ordinarily comfortable with, does consent need to be obtained from a suitable decision maker.
If the matter involves some gravity or possible negative consequence for the adult, perhaps yes. If it doesn’t and there are positive consequences, the answer should be sensibly no.
In this case the Tribunal concludes that MK has the capacity to consent to the device being used for her safe transportation and her consent endures when she is having an absent seizure.
Other matters raised by this application
This would ordinarily be the end of the matter and for the purpose of this application it is. The application must be dismissed. The circumstances of this case are such that the Tribunal considers it would be helpful to the sector to explore some other features. These other features are:
§Whether MK’s behaviour causes harm to herself; and
§Whether the use of a wheelchair can be characterised as transportation.
Do harmful behaviours exist
Usually, the next matter that the Tribunal needs to be satisfied of is whether MK’s behaviours previously resulted in harm to herself or others. MK does not exhibit behaviours which cause harm to herself or others. She has been living with Centacare for 18 years. The proposed arrangement is not in response to challenging behaviours. There are no behaviours of harm. MK does not attempt to leave the chair any longer. In the past there is a documented history of her rapidly exiting the wheelchair and falling over and crashing into walls or furniture causing bruising and contusions. This no longer occurs.
This matter has similarities to another matter considered by the Tribunal in WAJ. In this matter the adult was being fed artificially and had a sash device used when being fed. The use of the sash device was to ensure that the tube remained in place despite WAJ moving. In that matter the Tribunal found that section 123H of the Disability Services Act2006 excluded as a mechanical restraint the use of a medical device for the proper treatment of a physical condition. On review, it was found in that matter that the sash was not used for the primary purpose of managing the adult’s behaviour.
Mechanical restraint is defined as the use for the primary purpose of controlling the adult’s behaviour of a device to restrict the free movement of the adult or to prevent or reduce self-injurious behaviour. However the following are not mechanical restraint:
§Using a device to enable the safe transportation of an adult. Examples given in the Act include a cover over a seatbelt buckle, or a harness or strap.
The Tribunal has already considered that MK’s behaviour has not caused harm to herself.
Transportation
In other circumstances the Tribunal would need to consider whether there would be a need for a decision about the matter. This gives rise to the question as to whether or not mechanical restraint is being used. This raises the question of whether or not the wheelchair can be characterised as transportation. Transportation is defined in the concise Collins English Dictionary as a means or system of transporting. Transport is defined to carry or cause to go from one place to another especially over some distance.
In MK’s case the Tribunal is satisfied that the wheelchair is used to transport her from one place to another. Because of her mobility issues when she is out of her home the wheelchair is used to transport her as a means of getting from A to B because she is unable to walk safely. When MK is not placed in the wheelchair for sitting purposes, the wheelchair is moved to move MK even within her own home between one side of the duplex and another. That is, it is not merely used as a seat.
The Tribunal therefore concludes that the use of the wheelchair to enable the safe transportation of MK means that the use of a device that is a harness or strap or a cover over a seatbelt buckle is a device to enable the safe transportation and is not mechanical restraint as defined under section 123H of the Disability Services Act 2006. In these circumstances there is no restrictive practice being used. I make this finding in respect of MK’s circumstances only. The application must be dismissed on the basis that none the elements of section 80ZD of the Guardianship and Administration Act 2000 can be satisfied.
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