RMJ
[2011] QCAT 700
•11 November 2011
| CITATION: | RMJ [2011] QCAT 700 |
| PARTIES: | RMJ |
| APPLICATION NUMBER: | GAA8227-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | E Morriss, Member |
| DELIVERED ON: | 11 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for restrictive practices (general) for RMJ. 2. The guardian for restrictive practices (general) is to provide a copy of any updated Positive Behaviour Support Plan to the Tribunal within one (1) month of the guardian approving the uses of a restrictive practice in relation to the adult. 3. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. |
| CATCHWORDS: | Guardianship – capacity – restrictive practices – chemical restraint – restricted access to objects |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr RMJ is a fifty eight year old man with a severe intellectual disability. The Queensland Civil and Administrative Tribunal appointed the Adult Guardian as a decision maker regarding the use of restrictive practices (general) on 12 November 2010. This appointment was for twelve months. The appointed was reviewed by the Tribunal on the papers available on 11 November 2011.
The Tribunal can appoint a guardian for a restrictive practice matter under section 80ZD of the Guardianship and Administration Act 2000. It must however be satisfied:
(a)the adult has impaired capacity for the matter; and
(b)the adult’s behaviour has previously resulted in harm to the adult or others; and
(c)there is a need for a decision about the matter; and
(d)without the appointment:
(i)the adult’s behaviour is likely to cause harm to the adult or others; and
(ii)the adult’s interests will not be adequately protected.
The Tribunal considered whether RMJ has capacity for decision-making about his matters. Two health professional reports were available from Dr Jones (9 December 2009 and 4 November 2010). These indicate that RMJ has an intellectual disability from early childhood. He also had a cerebrovascular accident (stroke) on 21 February 2007. His expressive communication is poor and he only understands short sentences and commands. He cannot make any complex decisions, including about restrictive practices.
The Positive Behaviour Support Plan (May 2010) indicates that RMJ has a severe intellectual disability, asthma and atopic eczema. Historical records indicate he has had an intellectual disability since ingesting kerosene as a small child. He was living with family until 1960, and subsequently resided in Wolston Park and Challinor Centre. He has lived in the community since 1989 in a 24/7 accommodation support model. He uses vocalisation, eye gaze, limited speech and proximity to communicate needs and wants. He is able to understand requests and comments but has no formal way of initiating interaction or expressing needs and wants.
The Tribunal is satisfied that RMJ has impaired capacity for decision making, including decisions about restrictive practices:
(a)He has had a severe intellectual disability since his early childhood. This restricts his understanding and capacity to understand the nature and effect of simple and complex decisions.
(b)He has limited understanding and capacity to communicate his needs and wants. He can only understand simple verbal information and commands.
(c)He requires assistance in all day to day activities, including all aspects of simple and complex decision making.
The Tribunal also accepts that RMJ’s behaviour has previously caused harm to himself, consistent with the definition of “harm” in the Disability Services Act 2006, section 123E which is:
(a)physical harm to the person; or
(b)a serious risk of physical harm to the person; or
(c)damage to property involving a serious risk of physical harm to the person.
The Positive Behaviour Support Plan has provided a detailed description of self-injurious behaviours which have been well-documented over RMJ’s lifetime. He has a history of self injury which is described as using his hand or closed fist to hit or slap his head and ears causing pain, markings, redness, and swelling. These behaviours have resulted in permanent damage to his ear commonly described as “Cauliflower Ear”. This behaviour is often of very high frequency and may occur up to 58 times/week. He also continuously picks or scratches at parts of his body or healing wounds to the point where physical damage is caused, and creating open sores and bleeding. Average frequency is between 0-32 incidents/week but is often of brief duration. Lastly, if not supervised he engages in gorging behaviours, quickly consuming large amounts of food with a risk of gagging, choking, losing consciousness or death. RMJ has other behaviours of concern which require management, such as stealing, inappropriate masturbation and wearing excessive layers of tight clothing and belts – these behaviours however have not been demonstrated to have caused harm to either the adult or to others.
The Tribunal must satisfy itself that there is the need for decisions to be made about restrictive practices. The Positive Behaviour Support Plan describes the use of chemical restraint (fixed dose and PRN) and restricted access to objects to manage RMJ’s behaviours.
RMJ is subject to restricted access to food to prevent him consuming or gorging on large amounts. During periods where he is unsupported, that is, when staff are not present, the staff may lock the pantry and fridge to prevent his free access. This is a restrictive practice but necessary to ensure his safety.
Medication has also been used since at least 1979, as a measure to manage RMJ’s challenging behaviours. An extensive history of medications used historically has been provided in the Positive Behaviour Support Plan. He is currently prescribed Luvox, Rispiradone (fixed dose and PRN) and Benzotropine which is for side-effects associated with medication use. Previously, RMJ’s General Practitioner, Dr Jones indicated that medication was used to manage agitated and aggressive behaviour. This has also been the view expressed by the Adult Guardian and detailed in the Positive Behaviour Support Plan.
However a recent letter from MD (Disability Services, Department of Communities) dated 4 November 2011 indicates that RMJ has had a medication review with his Psychiatrist Dr Wong, and has now been diagnosed with a mental illness. An attached form “Clarification of the Purpose of Medication)” completed by Dr Wong on 31 October 2011 notes the use of Luvox and Rispiridone as being for “mood disorder” under the heading of mental illness. No further information was available to indicate the process by which this diagnoses was made. There was no information to indicate any substantiated history of mental illness requiring treatment or current information about current presenting symptoms. Of more significance, no information was provided as to why this diagnosis was the most likely given RMJ’s lifetime history of challenging behaviours, any alternative hypotheses regarding his symptoms, or what the appropriate treatment options may be.
The definition of chemical restraint, which is a restrictive practice, is contained in s 123F of the Disability Services Act 2006. Chemical restraint, of an adult with an intellectual or cognitive disability, means the use of medication for the primary purpose of controlling the adult’s behaviour. Medication used for the proper treatment of a diagnosed mental illness or physical condition is not chemical restraint. Neither the Guardianship and Administration Act 2000 or the Disability Services Act 2006 provides a definition of what is meant by “mental illness”. However, the definition in s 12 of the Mental Health Act 2000 describes “mental illness” as a “condition characterised by clinically significant disturbance of thought, mood, perception or memory”. A decision that a person has a mental illness must be made following assessment in accordance with internationally accepted medical standards.
In the case of RMJ the Tribunal is not satisfied on the information provided to it that the use of medication is for the “proper treatment” of a diagnosed mental illness. The information provided is inadequate. Most evidence, except that of Dr Wong points to RMJ’s behaviour as being the primary focus of treatment, and the cause of behaviour a range of factors within his environment, and related to his severe intellectual disability.
Of relevance is a report from Dr Nick Lennox dated 17 March 2003 which summarised RMJ’s lengthy history of behaviours requiring management including self injury (scratching, picking, head slapping and head banging), injury to others (grabbing, striking), destruction of property (kicking balls and throwing objects), socially unacceptable behaviour (nose clearing, coughing, masturbation) and extreme withdrawal or inattentive behaviour (short attention span, needing staff attention and redirection). These behaviours were related to his severe intellectual disability. At some times his behaviour has been a minor issue and not a significant concern, and may have been affected by major staffing changes. The behaviour seemed to serve a function of communicating his need for attention and to have human interaction.
The view of Dr Lennox although some years old, is quite consistent with the history and theories within the Positive Behaviour Support Plan, which considers a range of antecedents and hypotheses for RMJ’s behaviours. A range of circumstances are likely to increase the likelihood of behaviours occurring, such as boredom, being misunderstood, wanting to layer clothing, other co-tenants, waiting in lines, large groups or crowds, unfamiliar workers, staff talking about him during changeover, being told to leave other duplex by the tenant, or being near small children. In fact there are a range of cogent hypotheses that explain his behaviours, for example, fulfilling his need to avoid or escape situations, for expression of emotions, communicating and interacting with others, unmet needs.
It is reasonably pointed out that RMJ has been reported to experience some anxiety, possibly related to his intellectual disability and a range of factors within his environment. Not all people who experience symptoms such as anxiety would be diagnosed as having a mental illness. The Tribunal is not satisfied that substantive information has been presented that indicates that in RMJ’s circumstances the medication he is prescribed is not for the primary purpose of controlling his behaviour or that he has a diagnosed mental illness. On the balance of probabilities the Tribunal is satisfied that RMJ continues to subject to the use of chemical restraint as is described in s 123F of the Disability Services Act 2006.
Given that RMJ is subject to chemical restraint and restricted access to objects, he requires a decision maker to be appointed to approve such practices.
In regard to who should be appointed, RMJ has for many years had only very limited contact with one family member, who is said to be available as an informal decision maker. The Adult Guardian was not successful in making contact with her. It is unclear whether family have any meaningful contact with RMJ, or understand his complex needs. The Tribunal is satisfied that RMJ requires an informed guardian, with a thorough understanding of the restrictive practices legislation, who is available to consult with service providers and to make decisions about the use of restrictive practices. The Adult Guardian is the most appropriate appointee in the circumstances and the Tribunal made orders accordingly.
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