PLR
[2011] QCAT 699
•14 July 2011 with written reasons delivered on15 November 2011
| CITATION: | PLR [2011] QCAT 699 |
| PARTIES: | PLR |
| APPLICATION NUMBER: | GAA3034-11 / GAA3035-11 / GAA3036-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 14 July 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Mark Johnston, Member Joanne Brown, Member Keta Roseby, Member |
| DELIVERED ON: | 14 July 2011 with written reasons delivered on15 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal approves Disability Services containing and secluding PLR in accordance with the Positive Behaviour Support Plan dated 5 July 2011 subject to any changes notified by the Chief Executive Department of Communities (Disability Services). 2. The Tribunal approves Disability Services using the following restrictive practices in relation to PLR in accordance with the Positive Behaviour Support Plan dated 5 July 2011 subject to any changes notified by the Chief Executive Department of Communities (Disability Services): a) physical restraint; and 3. Unless the Tribunal orders otherwise, this approval remains current for twelve months. |
| CATCHWORDS: | GUARDIANSHIP – where restrictive practices used to respond to challenging behaviour – where proposed use of containment and seclusion – where proposed use of physical restraint and restricting access to objects |
APPEARANCES and REPRESENTATION (if any):
| PRESENT: | PM – father of the Adult TG – mother of the Adult PF – sister of the Adult Karl Jacks – Senior Clinician, SRS Ian Wilson – Director Service Division, Accommodation Support and Respite Service (ASRS) Glen Marchant – Program Officer, ASRS Brisbane Margaret Baker – Acting Manager, ASRS Townsville Yvonne Latham – support staff Gillian Yearsview – Individual Response Leader, SRS Tanya Anderson – Team Leader, Disability Services Daniel Robertson, granted leave to represent the Department of Communities (Disabilities Services) pursuant to section 43 of the Queensland Civil and Administrative Act 2009 |
REASONS FOR DECISION
Background to hearing
On 23 July 2010 the Queensland Civil and Administrative Tribunal gave approval for Accommodation Support and Respite Services, Department of Communities (Disability Services) to use a number of restrictive practices as a last resort when PLR was displaying serious challenging behaviour. These included containment, seclusion, chemical, physical restraint, and restricting PLR's access to objects as outlined in the Positive Behaviour Support Plan dated 23 July 2010. The matters before the Tribunal have come about due to the approaching expiry of the Tribunal’s July 2010 orders. On 14 July 2011 the hearing of the matters took place in Townsville.
Something about the adult
PLR is a young man with large green eyes, dark short hair whose generally quiet presentation is in contrast with his imposing physical size. When at home, PLR can generally be found spending time on his swing in his garden or relaxing on his bed watching music DVDs. He enjoys going out in his car and takes particular interest in going to quiet community areas such as to the park, beach, to the local pub for lunch or similar outings. PLR appears to enjoy consistency in his care, and routine and structure within his daily life which assist in maintaining his arousal levels. A pictorial communication board is used to illustrate to PLR what staff and visitors will be entering his house during the day. Whilst PLR uses a limited range of vocalisations and gestures, he is able to express a range of emotions such as frustration, happiness, pain and which are usually understood by people who know PLR well. PLR is a complex and occasionally challenging person who was obviously liked by those who meet him and has many positive attributes and mannerisms which is reflective in the longevity of the staff members providing support. Staff report that despite outburst behaviours that when PLR is good he is a gentle and nice person.
Does the adult lack capacity?
The Tribunal received a Health Professional Report from Mr John Livingston acting SNR psychologist who described the adult’s current medical conditions in paragraph 4.1 in these terms: Childhood Disintegrative Disorder; Sanfilppo Syndrome; Landau – Kieffner: and Heller’s Dementia. He indicates in paragraph 5 of the Report in relation to PLR's decision-making ability around personal healthcare matters that PLR appears to have capacity to perform some personal healthcare activities with the aid of prompts and augmentive communication. However, he reportedly demonstrates minimal insight of safety and hygiene risks when performing said tasks. In relation to restrictive practices the Report at paragraph 6.3 states that it would be likely that PLR would demonstrate little insight or capacity to understand the reasons for consideration of use of restrictive practices, or the consequences or implications of such. The summary to the Report indicates that PLR is unable to make even simple decisions in relation to the use of restrictive practices.
In the Positive Behaviour Support Plan on page two there is a section dealing with PLR's cognitive and academic abilities. These point a picture of severe autism and severe intellectual disability with profound deficits in relation to his communication domain. On a day to day basis a very limited ability to make decisions. Mr Livingston has indicated that PLR would likely require pervasive support across all the domains of functioning.
All the parties present agreed that PLR lacks capacity for restrictive practices.
Findings of Fact
The Tribunal finds that the evidence established that the adult cannot understand the nature and affect of decisions about restrictive practice matters.
PLR suffers from a form of illness that has led to severe autism and a severe intellectual impairment. These conditions significantly impact upon PLR's level of functioning.
Conclusion
The Tribunal determines that the adult does not have capacity to make decisions about restrictive practices.
Legal requirements for the Approval of restrictive practices
Documents before the Tribunal included an extensive Positive Behaviour Support Plan. In that document evidence was provided of PLR causing serious self harm and harm to others in the form of aggression towards staff and members of the public. The Plan also outlined an extensive assessment by appropriately qualified staff in regard to PLR's behaviour, living circumstances at the time, and views about ways in which the risk of harm to limit self and others could be reduced through the use of restrictive practices identified in paragraph 1 above. Observation and monitoring procedures were also outlined in the Plan.
[10] On 14 July 2011, the Tribunal found that all requirements of section 80V had been satisfied. Oral evidence from those attending the hearing confirmed that there had been no positive changes in PLR's intellectual and decision-making capabilities since the previous Tribunal hearing.
[11] The Tribunal, therefore progress to consider if they would give approval for containment and/or seclusion (and any other restrictive practice).
[12] The Tribunal had before it a Containment and Seclusion Report that gave an update on PLR's circumstances and behavioural status. It is evident from the report that PLR continues to display self harming and aggressive behaviour towards others. Typically, PLR will engage in outburst behaviour quite quickly and may initially bite his right-hand, followed by making loud vocalisations increasing in intonation and sometimes bang on surfaces (car, doors, walls, and windows). PLR may run around his home kicking objects as he passes on. More recently staff reported that the course of PLR's behaviour had reportedly changed. The highest level of behaviour is level 3 behaviour which involves: running directly at a person; bearing down/imposing body weight on a person; pounding doors/attempting to access the person behind a door; biting others (or attempts to); digging in nails/stretching others; and moving towards a person in an attempt to hit or kick. Whilst he still demonstrates level 3 behaviour type behaviour, the intensity of the level 3 has reportedly decreased. This appears to reduce PLR's level of anxiety/arousal and enable him to respond to staff direction even in the height of an outburst when at home. The statistics show for the period from 1 January 2011 to 30 April 2011 an average of 18.5 outbursts per month with the highest total outburst per month being 23 recorded in both January and March 2011. There have been changes in the episode durations. The average duration of a level 2 and 3 outburst between September 2010 in December 2010 (inclusive) was 7.75 minutes, this compares to average episode durations of 2.5 minutes on level 2 and 3 outburst from January 2011 to April 2011 (inclusive). This represents a significant reduction in the duration of the high risk outburst behaviour and is most likely attributed to the medication increased at the end of December 2010 which significantly reduced PLR's anxiety and outbursts.
[13] The Plan points out that specific data regarding PLR's outburst behaviour since January 2008 indicates that it remains a significant part of his life and whilst there have been fluctuations in frequency and severity of the outbursts; they have always been present each month.
[14] The Report indicates that being safe within the familiar environment of his home is important for PLR. He needs to be kept safe from road traffic particularly as his home is situated close to a major road. PLR also presents with behaviour which is deemed to pose a serious risk of harm, so it is considered necessary that PLR be prevented from free exit from the premises without support staff. The Report indicates that PLR is contained within the accommodation each week due to skilled deficits in regard to his safety if he were to exit the accommodation premises alone. There have also been occasions when his behaviour escalates and there is a risk that he might leave the premises and pose a threat to the general public. Containment is a default practice to limit his leaving the premises without support.
[15] Statements are also made in the Report that seclusion had occurred six times since August 2010 with the maximum time being used being 15 consecutive minutes. The author of the Report notes that seclusion, when used in accordance with the approved Plan, is considered to be the only effective option to ensure the safety of support staff and to affect a rapid reduction in PLR’s agitated state.
Findings of fact
[16] The use of the Plan has reduced the intensity and duration of episodes of challenging behaviour.
[17] The adult has a long history of challenging behaviour that has resulted in harm both to himself and to others.
[18] The adult has a history of unpredictable aggressive behaviour directed towards others.
[19] The adult also engages in self injury by biting his hands and striking walls or other objects when highly agitated. These events have led to personal injuries requiring treatment, although nothing serious.
[20] The adult’s behaviour has become more approachable since recent changes in medication.
Conclusion
[21] The Tribunal is satisfied that there is evidence that the adult’s behaviour has previously resulted in harm to the adult and others and that there is a need for a decision about the restrictive practices of containment and seclusion. The Tribunal is satisfied that without an approval the adult’s interest would not be adequately protected and the adult's behaviour is likely to cause harm to the adult or others.
[22] In accordance with section 80ZB of the Act the Tribunal then turned its attention to the need for the use of restrictive practices and in doing so, to section 80V(2)(f) specifically, that subsection referred as to the capacity of the Plan under consideration, to reduce or eliminate the risk of the adult behaviour causing harm, and achieve an improvement in the adult quality of life in the long-term. Towards this end, the Tribunal sought such indications from the parties present.
[23] Tanya Anderson gave evidence that she had ceased working with PLR for a number of years and has now come back as team leader. She has noticed that he is communicating more however you need to have a good understanding of him to appreciate the differences. The adult seems happy and is using objects and doing things that he wasn't at the past. To her mind he is in a positive place and his quality of life has improved.
[24] Karl Jacks gave evidence to the Tribunal that family members were consulted and there were planning sessions in March and April to review the strategies and that a lot of adjustments have been made to how staff handle PLR. He confirmed in relation to containment that the basis for the use was to protect PLR from harm but also members of the public because PLR had no road safety. In relation to seclusion this issue is when there is significant risk of harm to PLR if staff remained on present. In relation to some intense outbursts there is a great risk of harm and staff's presence may exacerbate PLR's behaviour. It is appropriate in those circumstances for staff to withdraw. There were six incidents since August 2010 of 15 minutes in duration by average.
[25] The Tribunal noted that there had been changes in PLR's medication. They noted a significant improvement in PLR following an increase in his Olanzapine. PM gave evidence that Professor O'Brien had formed the view that PLR was suffering from a lot of anxiety and that an increase in the medication would help reduce that anxiety and settled by the symptoms. He and staff saw an improvement in PLR that he appeared to be more settled. His mother raised the concern that his levels of medication needed to be monitored because some medications over sedate him and he is zombielike. Mr Robinson submitted that the use of Olanzapine in this context was not a restrictive practice.
[26] The Tribunal queried the use of Androcur. There was some suggestions in the medical documentation that PLR had acted out sexually and this is the reason why this drug had been used. PLR's parents were both very surprised by these allegations and indicated that they had been told that the medication was for their son’s severe acne. They were unaware of PLR having acted in the way that had been suggested and thought that these allegations were incorrect. They both indicated that they would be happy for this form of chemical restraint to be ceased if there was no proper basis for the allegations. This led to the Tribunal issuing a direction:
Disability Services is directed to consult with the adult’s treating doctor regarding the use of Androcur as a form of chemical restraint. Disabilities Services are to consult with both the treating doctor and members of the adult’s family regarding the use of this chemical for a decrease in sexualised behaviour. If Disability Services wish to continue with the use of the medication as a chemical restraint then the must provide written submissions/ report around the issues to the Tribunal by 4 pm on 11 August 2011.
[27] Mr Daniel Robertson subsequently wrote to the Tribunal on 29 August 2011 stating that the Department does not support the use of Androcur in response to any sexualised behaviour of PLR. On the advice of Professor O'Brien the Department will not wish to continue with the use of this medication. It would appear that the concerns which the Tribunal and family had in relation to this medication will lead to its cessation as there is no basis for it to be approved in this case as a chemical restraint. In relation to all the other medications which PLR receives the Tribunal accepts the submission of Mr Robertson that none of these are for challenging behaviour and accordingly that none of these can be looked at as forms of chemical restraint. The Tribunal notes however the need for regular reviews of medication will continue.
[28] PM and PF both talked about having opportunities to spend time with PLR and to take him out and do activities. They were of the view that his quality of life had improved. PM indicated that he did not like the use of the restrictive practices but from his past experience they would be necessary in order to protect staff. TG was very happy with the quality of the staff in the way that PLR was being looked after. She also agreed that his quality of life had improved and supported the use of the restrictive practices because of the need to protect staff from harm when there were outbursts of behaviour.
[29] There was a lot of this discussion during the hearing over the accommodation. Whilst on one hand this has worked out and been supportive for PLR it to small and creates a risk for staff when there are outbursts. Karl Jacks indicated that this was an issue that he as a clinician was considering. There were lots of factors involved in looking at alternative accommodation.
[30] The Tribunal heard evidence from staff that rewards had been used successfully as a basis through improving behaviour. In relation to his social access PM indicated that a very realistic plan had been put forward that gives scope for lots of activities. He is happy with what is planned and confident that this will lead to an improvement in the quality of PLR's life.
[31] Karl Jacks told the tribunal that the proactive strategies had been revised to reflect PLR's current needs. In relation to those communication is the biggest factor. Attempts are being made to teach PLR new skills; to have fun activities; more engagement and to lower the risk of boredom. In relation to reactive strategies the levels of risk have been simplified into three levels. The statistics show a reduction in the intensity of level 2 and level 3 episodes. This shows that the strategies are being effective to reduce the need for restrictive practices. However PLR's response to treatment and his environment is complex so it is hoped that continued monitoring will produce better results.
[32] In relation to physical restraint this is sometimes necessary to enable staff members to escape during outbursts and is also used as a last resort to prevent PLR or members of the public from the risk of harm during an outburst. The layout of the house can sometimes trap staff physical force is necessary.
[33] In relation to the restriction of access to the refrigerator this has been necessary because PLR has a long history of eating uneatable objects for example plastic food coverings and he has choked on a pip from placing too much fruit in his mouth at once. The restriction of access to food and on consumables reduces the risk of harm associated with poisoning, choking and the longer term effects of obesity. Tanya Anderson told the tribunal that there was a small bar fridge which contains water and snacks which PLR can access.
[34] PLR's parents told the Tribunal from their time looking after PLR that this was a restrictive practice that would be necessary from time to time and they support the Tribunal approving the practice. They recognised that PLR's carers were doing everything possible to manage behavioural challenges in the least restrictive way.
[35] The Plan meets the requirements of the legislation and it is appropriate for the Tribunal to approve the use of the restrictive practices in relation to PLR by approving containment and seclusion in accordance with the Positive Behaviour Support Plan, subject to any changes notified by the Chief Executive, Department of Communities (Disability Services).
[36] The Tribunal will also approve the use of physical restraint and restrictions to PLR's access to objects and namely the refrigerator in accordance with the Positive Behaviour Support Plan, subject to any changes notified by the Chief Executive, Department of Communities (Disability Services).
[37] Unless the Tribunal orders otherwise, this approval remains current for twelve (12) months.
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