PMD
[2011] QCAT 353
•3 August 2011
| CITATION: | PMD [2011] QCAT 353 |
| PARTIES: | PMD |
| APPLICATION NUMBER: | GAA4205-11; GAA4486-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 21 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | L. Clarkson G. Quinlivan |
| DELIVERED ON: | 3 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for PMD for decisions about the following personal matter: a) Whether PMD engages in the practice of smoking cigarettes, and if approved, the conditions which should apply to the implementation of any such decision. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in twelve (12) months. 3. The guardianship order for restrictive practices made by the Tribunal on 28 September 2010 is changed by removing MH and NS as guardians for restrictive practices and appointing the Adult Guardian as guardian for restrictive practices (general) for PMD. 4. The guardian for restrictive practices (general) is to provide a copy of any Positive Behaviour Support Plan and the assessments by at least one appropriately qualified person to the Tribunal within one (1) month of the guardian approving the use of a restrictive practice in relation to the adult. 5. Unless the Tribunal orders otherwise, this appointment remains current for twelve (12) months. |
| CATCHWORDS : | GUARDIANSHIP and ADMINISTRATION Sections 12(1), 14(2), 80ZD(1), 31(2), 31(4) of the Guardianship and Administration Act 2000. |
APPEARANCES and REPRESENTATION (if any):
PMD the Adult
MH Adult’s mother and guardian
NS Adult’s foster sister and guardian
JM friend of Adult
Patricia Occelli representative, Department of Communities
Michelle Davies Psychologist, Specialist Response Service
Dianne Toohey Advocate, SUFI
Kathy Kendall Advocate, SUFI
Dr Jeffrey Chan Chief Practitioner, Disability Services
Melissa Thompson Supports Facilitator, Disability Services
Lee Cronin Supports Facilitator, Disability Services
Cathy Brown Support Provider
Dea Field Support Provider
Tara Kent Office of the Adult Guardian
REASONS FOR DECISION
PMD is a 39 year old woman who resides in supported accommodation in a northern suburb of Brisbane.
The Tribunal appointed her mother and foster sister, MH and NS respectively, as guardians for restrictive practices (general) by way of an order made on 28 September 2010.
Patricia Occelli brought an application to the Tribunal seeking the appointment of a guardian for PMD for decisions about certain personal matters. The application also sought a review of the appointment of a guardian for a restrictive practice matter. Both applications proposed the appointment of the Adult Guardian.
The Tribunal hearing took place on 21 July 2011.
Legislation and Issues
In relation to the appointment of a guardian for personal matters, relevant legislation included ss.12(1), 14(2), and the definition of capacity in Schedule 4 of the Guardianship and Administration Act 2000.
Section 12(1) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult.
Section 14(2) outlines the circumstances in which the Tribunal may appoint the Adult Guardian as guardian for an adult.
In relation to the review of the guardianship appointment for restrictive practices, relevant legislation included ss.31(2), 31(4), 80ZD(1), and the definition of capacity in Schedule 4 of the Guardianship and Administration Act 2000.
Section 31(2) provides that at the end of the review the Tribunal should revoke its appointments unless it is satisfied it would make an appointment if a new application were to be made.
[10] This proviso directs the Tribunal to s.80ZD(1) which outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian for a restrictive practice matter.
[11] Section 31(4) provides that the Tribunal may remove an appointee only if it is satisfied that the appointee is no longer competent or that another person is more appropriate for appointment.
[12] The issues for the Tribunal in relation to the application for the guardianship appointment for personal matters were:
Does PMD have impaired capacity for decisions about relevant matters? (Relevant matters in this case being decisions about personal matters)
If so, is there a need for decisions about relevant matters to the extent that, without an appointment, PMD’ needs will not be adequately met or her interests will not be adequately protected?
If so, who is appropriate to be appointed as guardian? In this regard, apart from the Adult Guardian, is there no other appropriate person available for appointment?
[13] The issues in relation to the appointment of a guardian for a restrictive practice matter involved the criteria outlined in s.80ZD(1)(a) to (d). That is:
Does PMD have impaired capacity for the matter? [s.80ZD(1)(a)]
Has PMD’ behaviour previously resulted in harm to herself or others? [s.80ZD(1)(b)]
Is there a need for a decision about the matter? [s.80ZD(1)(c)]
Without an appointment, is PMD’ behaviour likely to cause harm to herself or others, and will her interests not be adequately protected? [s.80ZD(1)(d)(i) &(ii)]
If the Tribunal is satisfied about these matters, are the current appointees incompetent, or is another person shown to be more appropriate for appointment.
Evidence pertaining to capacity
[14] The Tribunal was provided with a number of written reports from medical practitioners.
[15] Dr Muhammed Hussain (report, 18 September 2010) stated that PMD medical conditions include an intellectual impairment (Prada-Willi syndrome), and depression. She demonstrates poor understanding and a lack of judgement and insight into decisions about health care and lifestyle matters, and does not fully understand the extent of decisions about the use of restrictive practices. Summary: PMD can understand and make simple decisions only about health care matters, but not about lifestyle or financial matters, or about the use of restrictive practices.
[16] Sarah Littman, Neuropsychologist (report 23 December 2009) stated that PMD has mild to moderate intellectual impairment. Assessments suggest she requires ongoing supervision and assistance with tasks that require planning, judgement, logical reasoning, and decision making. Clear boundaries are required to compensate for PMD’ impulsivity and judgement difficulties in order to ensure her psychological, physical, and financial safety. She has little insight into her difficulties and the dangers of her behaviour in the past.
[17] The Positive Behaviour Support Plan prepared for PMD refers to a diagnosis of Dr John Gavilan, Psychiatrist, of Prada-Willi syndrome, intellectual disability, and possible depressive disorder.
[18] Dr Heather Ward, Psychologist (letter, 15 July 2011) states that PMD has a number of medical conditions, including Prada-Willi syndrome, which is associated with compulsive over-eating, excessive weight gain, and diabetes. On top of her serious health and intellectual difficulties, PMD has emotional and behavioural difficulties that resemble features of autism.
[19] At the commencement of the hearing, PMD told the Tribunal that she is upset with restrictions which have been imposed by her decision makers. Specifically, she enjoys gambling on poker machines and smoking cigarettes.
[20] On the issue of her capacity, PMD acknowledged she needs help with decisions in a range of matters, including budgeting and her health care.
No party at the hearing disagreed with the opinions of the medical practitioners, whose opinions were consistently to the effect that, apart from some simple choices, PMD has a number of medical conditions which impact on her decision making capacity, and that she lacked the capacity to make decisions in a broad range of areas.
Does PMD lack capacity for decisions about relevant matters?
[22] In view of the consistent evidence of the medical practitioners which was unchallenged by the parties, the Tribunal found that the presumption of capacity to which all Queensland adults are entitled is rebutted in relation to PMD’ decision making ability.
[23] The Tribunal concluded that PMD has impaired capacity for decisions about personal matters, and for decisions about the use of restrictive practices.
Need for appointment – personal matters
[24] The evidence indicates that PMD has complex health care needs, with other decisions likely to be required in the future in relation to where she lives and the range and level of services she receives. These decisions are presently being made on an informal basis by PMD’ support network, namely her mother and foster sister, MH and NS.
[25] The evidence did not reveal any specific area of decision making which would indicate that PMD’s needs were not being adequately met. There appeared to be no issue presently with the quality of health care decisions made for PMD, or with arrangements regarding her accommodation, or with the services she is receiving.
[26] The applicant, Patricia Occelli, indicated that the area of concern was not with the result of any particular decision, but with the decision making process. There had been problems in the past in relationships between family members and various service providers. In fact, both ‘camps’ allege difficulties with a lack of consistency of decision making. Most of the concerns raised by the applicant and by family members appear to revolve around decisions and practices outlined in the Positive Behaviour Support Plan prepared for PMD.
[27] The Tribunal had some difficulty identifying specific areas of decision making about personal matters where PMD might benefit by the removal of the authority of her support network, and appointing a guardian for those matters.
[28] In one instance, however, the Tribunal was mindful of PMD’s opening statement concerning her preferences, which she expressed fairly articulately and forcefully. That is, firstly, she wants the freedom to play the poker machines, and secondly, she wants to be allowed to smoke cigarettes.
[29] As to the first issue, the Tribunal was aware that the Public Trustee is PMD’s administrator. This appointment is not the subject of review, and a representative of the administrator did not attend the hearing. However, this is a matter which can be taken up with the administrator to ascertain if, from a financial perspective, an amount of money might be included in the budget to allow for some limited spending in this regard. PMD’s family indicated that they would not seek to hinder her consultations with the Public Trustee in this regard.
[30] As to the second issue, family members referred to the reports of medical practitioners which state that PMD’ medical conditions render her more vulnerable than most people to the hazards of smoking. No party attending the hearing suggested that smoking had any beneficial health benefits. But the evidence of certain practitioners led the Tribunal to the conclusion that the decision in relation to smoking was not as straightforward as it might initially appear.
[31] That is because of statements and opinions expressed by a number of professionals, including Michelle Davies, Principal Clinician, Specialist Response Service. In essence, the opinion is to the effect that the primary hypothesis for PMD’s challenging behaviour arises out of her desire for greater control and self-determination. That is to say, PMD’s challenging behaviour is an expression of protest against, what she perceives as, undue restrictions on her freedom. Examples of this challenging behaviour will be detailed later. Suffice it to say that it has in the past placed her life and wellbeing at significant risk.
[32] One of the perceived difficulties with support workers in the past was the perception of a lack of adherence to the ‘no smoking’ policy. This attitude may stem from a perceived lack of authority on the part of the support network to make such decisions for PMD. In any event, this woman has enough difficulties adhering to decisions made on her behalf without those decisions demonstrating a lack of consistency, or doubt as to their validity.
[33] It appeared to the Tribunal that there may be a benefit to PMD for an independent decision maker in relation to this personal matter. It will likely achieve a number of outcomes. The decision will carry with it the authority (and certainty) of a formally appointed guardian. It should have the effect of easing the tension between PMD and her family. It would likely be devastating for PMD if her relationship with those family members who have been her strongest advocates, and who have supported her for the majority of her life, should become strained due to her perception of the unfairness of certain decisions they have made. Thus the appointment of an independent decision maker in this limited area should have the effect of increasing the strength of PMD’ support network, rather than weakening it.
[34] This proposition was discussed with the parties. MH and NS agreed that this may be a beneficial outcome, and raised no objection to the Adult Guardian’s appointment in this area of decision making. No other party raised objection.
Conclusion
[35] There were concerns raised by various parties about the decision making process undertaken by PMD’s support network. Nevertheless, it was not in issue that PMD is housed in appropriate accommodation, with relevant services in place, and that her health care is being properly managed.
[36] Notwithstanding the different views expressed by a number of parties, the Tribunal was satisfied that all parties were motivated by the desire to achieve an outcome which they believed was in the best interests of PMD.
[37] The Tribunal was satisfied that, at this time, the absence of the appointment of a guardian (in a broad range of areas) does not indicate that PMD’s needs will not be adequately met.
[38] However, the Tribunal found that, in relation to decisions about PMD’s smoking, her current support network was inappropriate. This finding does not indicate a view that the Tribunal finds the family incompetent in this regard, or that they have made a poor decision. On the contrary, on its face, the decision is based on sound advice. The finding is simply a recognition that there are a number of matters (including the general principles outlined in Schedule 1 of the Act) to take into account in arriving at a decision. It is also pertinent to record at this point that the Tribunal does not know what is the best decision for this woman, and no inference should be drawn that the Tribunal favours a particular decision or outcome.
[39] For these reasons, the Tribunal concluded that in relation to the decision about whether or not PMD smokes cigarettes, there is no appropriate person available for appointment for this matter, other than the Adult Guardian.
Is there a need for a guardian for restrictive practices?
Section 80ZD(1)(a): The Tribunal has found that PMD has impaired capacity for a restrictive practice matter.
[41] Section 80ZD(1)(b): PMD’s challenging behaviours are well documented in her Positive Behaviour Support Plan. They include:
Smashing glass and ceramics and using broken pieces to stab and cut herself.
Swallowing chemicals, pouring boiling water on herself.
Physical aggression, assaulting others, throwing projectiles at others.
Engaging in other risky behaviour. Examples include: running into traffic, leaving home unsupported to engage in sexually risky behaviour in exchange for money, food, cigarettes, and transport.
[42] The Tribunal is satisfied there is overwhelming evidence to establish that PMD’s behaviour has previously resulted in harm to herself or others.
[43] Section 80ZD(1)(c): The Positive Behaviour Support Plan indicates the use of a number of restrictive practices. PMD is prescribed a number of medications, including Valproate and Quetiapine. Both these medications are prescribed for the primary purpose of controlling her behaviour. As such, the medications constitute chemical restraint, as that term is defined in s.123F of the Disability Services Act 2006. There is also restricted access to objects, being those items with the potential to cause harm. Section 123ZA(4) of the Disability Services Act 2006 provides that the use of chemical restraint requires the consent of a relevant decision maker, which in this case means a guardian for a restrictive practice matter (general).
[44] The Tribunal is satisfied therefore that the restrictive practices in use for PMD require the involvement and decision of an appointed guardian in relation to those matters.
[45] Section 80ZD(1)(d)(i): The Positive Behaviour Support Plan outlines the reasons for the use of restrictive practices outlined. They are designed either to prevent challenging behaviour arising in the first place, or to stop it when PMD’s behaviour is escalating to the point where harm may result. The absence of a guardian will mean that there can be no consent given to use of chemical restraint. In these circumstances, it should therefore be discontinued. The likely result is that PMD’s challenging behaviour will increase in frequency and intensity.
[46] The Tribunal found that, without the appointment of a guardian, some forms of restrictive practices must be discontinued. In these circumstances, it is likely that PMD’s behaviour will cause harm either to herself or others.
[47] Section 80ZD(1)(d)(ii): Given the finding that the absence of an appointment will likely cause escalations in PMD’s harmful behaviour, it must follow in that event her interests will not be adequately protected.
Who should be appointed as guardian for a restrictive practice matter?
[48] Given the Tribunal’s satisfaction that the criteria outlined in s.80ZD(1) have been met, it remains to determine if the current guardians are not competent or that another person is more appropriate for appointment.
[49] Those who support the application for review of the appointment voiced their concerns with the decision making process of the guardians in relation to the preparation and adherence to the principles and guidelines contained in the Positive Behaviour Support Plan. For reasons which will become clear, the Tribunal does not consider it is productive to enumerate in detail the concerns, or to discuss in detail the guardians’ response to these allegations. The concerns expressed and the responses of the guardians appear to be based on the parties’ perceptions of what is the best outcome for PMD.
[50] In discussions about the Positive Behaviour Support Plan, the Tribunal queried why the parties did not consider the use of physical restraint as one of the practices which might prevent or restrict PMD from engaging in some dangerous activity. It appears the authors of the plan are of the view that support workers should not be forced to risk their own safety by the use of physical restraint, and in any event, their duty of care will justify physical restraint.
[51] The Tribunal was concerned with the reasoning of the representatives of the Specialist Response Service. It is of course not suggested that any support worker or other person should risk injury by the use of physical restraint. But to include this option in the plan will give support workers precisely that – another option. Further, the Tribunal queried the applicability of duty of care in circumstances where the relevant legislation defines physical restraint, and provides the circumstances in which it may be used.
[52] That is not to say the Tribunal holds that an option of physical restraint should be incorporated into the plan. But any such decision must be made on an informed basis. The plan is of course a living document and should be reviewed periodically.
[53] The representative of the Adult Guardian told the Tribunal that the appointment of the Adult Guardian for this matter would result in the involvement of that Office in the discussions about any review of the plan.
[54] The current guardians took the view that the involvement of the Adult Guardian in this fairly complex matter would likely benefit PMD. That is not to say that MH and NS are backing away from their involvement with PMD. It is simply that in the shorter term, the greater the opportunity of informed input into the preparation or review of the Positive Behaviour Support Plan, the more likely is the prospect of a better outcome for PMD.
[55] No party objected to the appointment of the Adult Guardian as guardian for a restrictive practice matter.
Conclusion
[56] The Tribunal found that the Adult Guardian was at this stage a more appropriate appointee than the current guardians. With respect to those professionals who prepared the current Positive Behaviour Support Plan, the Adult Guardian’s appointment will result in knowledgeable input from another source when the plan is reconsidered or reviewed. This can only result in a benefit to PMD.
[57] In arriving at this conclusion, significant weight was placed on the fact that the current guardians acknowledged the likely benefit of appointing the Adult Guardian for this purpose, and the Tribunal appreciated their insight in this regard.
Orders were made accordingly.
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