NHI – Application for Approval of a Restrictive Intervention

[2015] TASGAB 1

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

NHI – Application for Approval of a Restrictive Intervention

REASONS FOR DECISION (LEGAL QUESTION)

Anita Smith (President)
Rodney Lester (Member)
Susan Aylett (Member)

Date of hearing: 20 January 2015

Restrictive Interventions – whether a physical structure erected to control behaviour can serve a ‘therapeutic purpose’ - physical structure essentially a practical solution to a behavioural problem

Words and phrases – “therapeutic purposes” – needs nexus with expert medical or scientific opinion and the propensity to cure or alleviate an existing disease

Disability Services Act 2011 Part 6, s. 34

Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992) at paragraph 48

1. In the hearing of an application for the approval of a restrictive intervention the delegate of the Senior Practitioner asked the Board to consider whether the restrictive intervention under consideration might be considered to have been ‘taken for therapeutic purposes’ and therefore be excluded from the definition of restrictive interventions under the Disability Services Act 2011 (the Act).  The Board reserved consideration of that question and offered to produce written reasons for the guidance of the Senior Practitioner and persons engaged in the provision of disability services.  This decision is limited to that point.

2. A restrictive intervention can be approved by the Secretary of the Department of Health and Human Services where it involves environmental restriction. Where a restrictive intervention involves personal restriction, the Board can approve such practices pursuant to Part 6 of the Act. Section 4 of the Act defines a restrictive intervention as meaning “… any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person but does not include such an action that is –

   (a) taken for therapeutic purposes; or

   (b) taken to enable the safe transportation of the person; or

   (c) authorised under any enactment relating to the provision of mental health services or to guardianship”

1. Section 34 of the Act states:

   “personal restriction, in relation to a person with disability, means a restrictive intervention in relation to the person that consists wholly or partially of –

   (a) physical contact with the person so as to enable the behavioural control of the person; or

   (b) the taking of an action that restricts the liberty of movement of the person.”

2. The intervention under examination is the use of a cot-sided bed for a 33 year old man with a severe intellectual disability which is used during usual sleeping hours.  It has been custom built under the instruction of his parents who used similar structures at home prior to his admission to supported accommodation.  Two sides of the bed meet the wall of the bedroom.  Two sides are bounded by a vertical wooden slatted structure which is low to the ground and reaches about shoulder height.  It is open at the top.  There is a wide latched gate in the middle of the longer side.  The gap between slats has been measured to accommodate vision and light to the bed, but to avoid the occupant getting his head or feet stuck if he should push them through.  Due to physical disabilities, the occupant is unable to hoist himself over the structure.  The cot-sided bed restricts his liberty of movement during usual sleeping hours. 

3. The occupant of the structure has Angelman’s syndrome which affects his sleep/wake patterns.  He may only sleep a few hours per night, but being in the bed during usual sleeping hours assists him to know that it is rest time.  If he was unrestrained in the night, he would be restless and move around the house. His unassisted method of mobilizing puts him at immediate risk of injury. Being alert or restless for long periods can exacerbate his risk of seizures and his general health.  His supported accommodation facility is not resourced for a staff member to be awake on overnight shift to monitor his activity which would be the practical alternative to the use of the bed.  He has reportedly used the structure (or similar structures) for 13 years without incident. It is argued by his parents, specialist disability staff and an occupational therapist that the use of this bed establishes a sleeping or resting routine that not only eliminates some risks to him but enhances his health and wellbeing to a greater extent than would be achieved by active monitoring by staff.  For that reason, they argue that it serves a therapeutic purpose.  There was no opinion from a medical practitioner or specialist to attest to that purpose. 

4. The Act does not define what is meant by ‘therapeutic purposes’.   Some guidance is available from other legislation.  However definitions in other Acts do not extend further than that Act and do not necessarily illuminate the language of an Act to which they do not apply.

1. The Human Tissue Act 1985 (Tas) states:

   therapeutic, medical or scientific purpose includes –
   (a) the teaching of therapeutic techniques, medicine or science; and
   (b) medical or scientific research; and
   (c) any other purpose prescribed in the regulations for this definition;

   (No regulations have been made in this respect.)

The Therapeutic Goods Act 2001 (Tas) adopts the definition of “therapeutic use” from the Commonwealth Therapeutic Goods Act 1989 in section 3 which states:

“therapeutic use” means use in or in connection with:

(a)  preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons; or

(b)  influencing, inhibiting or modifying a physiological process in persons; or

(c)  testing the susceptibility of persons to a disease or ailment; or

(d)  influencing, controlling or preventing conception in persons; or

(e)  testing for pregnancy in persons; or

(f)  the replacement or modification of parts of the anatomy in persons.

The Poisons Act 1971 (Tas) states:

therapeutic use means a use for the purpose of or in connection with –

(a) preventing, diagnosing, curing, or alleviating a disease, ailment, defect, or injury in persons or animals;

(b) influencing, inhibiting, or modifying a physiological process in persons or animals;

(c) testing the susceptibility of persons or animals to a disease or ailment; or

(d) destroying or inhibiting micro-organisms that may be harmful to persons or animals;

1. The majority of the High Court in Marion’s Case[1] noted that in the context of sterilisation of young women or girls with disabilities the term ‘therapeutic’ had an uncertain meaning: 

   “But first it is necessary to make clear that, in speaking of sterilisation in this context, we are not referring to sterilisation which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.”

   The Court did however note that previous Australian and Canadian cases had made that distinction to the extent that ‘therapeutic’ means the treatment of some malfunction or disease. 

   [1] Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992) at paragraph 48

2. Brennan J. in the minority (but not in respect of this definition) in that case stated:

   “11. It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. “Non-therapeutic” medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes.”

3. As can be seen from this discussion, the word “therapeutic” in law is often used to distinguish from procedures or substances that are counter therapeutic or non-therapeutic.  However, the general theme in these definitions is a connection with expert medical or scientific opinion and the propensity to cure or alleviate a disease.  In general parlance people might refer to recreational walking or gardening as “therapeutic” because it offers some positive feelings of wellbeing and enhances one’s fitness.  But, in law, it appears that there needs to be a connection to medical opinion or medical outcomes. 

4. The  Acts Interpretation Act 1931 in section 8A states:

   “Regard to be had to purpose or object of Act

   (1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.

   (2) Subsection (1) applies whether or not the purpose or object is expressly stated in the Act.”

5. The Disability Services Act 2011 states:

“3. Objects

The objects of this Act are – …

(f) to regulate the use of restrictive interventions by disability services providers and funded private persons.”

1. The Second Reading Speech for the Act notes in respect of this function:

   “Restrictive interventions are sometimes required to protect the person with disability, or another person from serious harm. Provisions within the Disability Services Act 1992 are inadequate in that they do not afford the level of protection required. It is necessary to define restrictive intervention so as to be able to make provisions to protect people with disability from the inappropriate use of restrictive interventions. A significant feature of this Bill is that it requires approval for the use of restrictive interventions, and that approvals will only be given after an assessment that the intervention is in the best interest of the person with disability, and that, it is the least intrusive intervention possible. The Bill introduces a requirement that, where ever possible, government will work towards the elimination of the use of restrictive practices. The Bill also introduces penalties for the inappropriate use of restrictive interventions.”

2. When the Board is called upon to consider a restrictive intervention, it must take into account (amongst other things) “the type of restrictive intervention will be carried out only for the primary purpose of ensuring the safety, health or wellbeing of the person or other persons” and “whether, and the extent to which, carrying out the restrictive intervention will promote or reduce the safety, health and wellbeing of the person with disability” (section 43(1)(a) and (2)(f)).  Therefore, it is acknowledged within the Act that certain non-therapeutic restrictive interventions will still have an effect that ensures or promotes the person’s health and wellbeing.  If every intervention that ensured or promoted the person’s health and wellbeing was taken to be for therapeutic purposes, there would be no need for inclusion of these provisions in the Board’s approval processes. 

3. It is the view of the Board that “therapeutic purposes” within the Disability Services Act 2011 relates to (a)  preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons, or (b)  influencing, inhibiting or modifying a physiological process in persons; or medical treatment of a disorder, disease or ailment.  In the context of physical structures, an obvious example of “therapeutic purposes” might include the application of a cast or frame for fractured bones or temporary physical restraints that promote healing of wounds after surgery.  

4. The evidence suggests that this structure has had some effects in mollifying the occupant’s sleeping problems which in turn has benefited his health and assisted in controlling his epilepsy.  However, there was no medical evidence suggesting that the structure had been recommended by a medical practitioner on the basis of medical science.  The cot-sided bed is essentially a practical solution to a behavioural problem.  Control of the behavioural problem has health benefits for the occupant of the bed but it is not, in the view of the Board, “taken for therapeutic purposes” within the meaning of the Act. 

5. As this is the first time that the phrase has been considered, the applicant might consider two possible approaches. One would be to test the Board’s interpretation on appeal to the Supreme Court.  Another would be to resubmit the application with expert medical opinion which firmly establishes the link between the reduction of epileptic seizures and the use of the cot-sided bed as opposed, for instance, to the efficacy of other possible measures such as the resourcing of an overnight shift to monitor and supervise the Mr. I’s sleeping and rest. 

6. The Board will proceed on the basis that the use of the cot-sided bed is a personal restriction within the meaning of the Act.

Anita Smith  Rodney Lester  Susan Aylett

PRESIDENT  MEMBER  MEMBER