SAP
[2010] QCAT 282
•17 June 2010
| CITATION: | SAP [2010] QCAT 282 |
| PARTIES: | SAP |
| APPLICATION NUMBER: | GAA4218-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 17 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 17 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of a guardian for restrictive practices (general) |
| CATCHWORDS : | Guardianship and Administration Act 2000 – Section 80ZD – challenging behaviours – mechanical restraint – physical restraint – guardian for restrictive practices (general) |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
SAP is 27 years old with high support needs. He has been diagnosed with physical and intellectual disability and epilepsy. He receives 24 hour support provided by a service provider funded by Department of Communities (Disability Services).
SAP lives with three co-tenants. SAP is non verbal and has limited communication skills. He enjoys a range of recreational and social activities. He uses a manual wheelchair for mobility.
SAP has regularly engaged in hand mouthing which has resulted in skin breakdown on his hand and mouth since before 1988. Care staff working with SAP use verbal prompts and redirection with sensory activities in an endeavour to divert SAP’s attention from hand mouthing temporarily. Other strategies such as gloves and hand mitts have been used in the past to prevent harm caused by SAP’s hand mouthing but these methods were unsuccessful in ceasing the behaviour.
An assessment conducted by TR (Behavioural Support Co-ordinator and Occupational Therapist) in June 2009 analysed the behaviour and suggested two hypotheses about the function of the behaviour. The first hypothesis suggested that SAP receives stimulation and sensory feedback from his mouth and oral structures and hands and fingers. The second hypothesis suggested that SAP engages in the behaviour habitually as he has repeated hand mouthing for many years. Dental and medical examinations have eliminated possible underlying dental or medical causes of the behaviour.
Evidence from support staff did not reveal any particular cues for the behaviour and did not appear to occur in any specific setting, time of day, with particular people present or in any particular situation.
Another iteration of behaviour which carries a risk of causing harm to SAP occurs when he is having a haircut. SAP tends to move his head when the hairdresser trims the hair around his ears resulting in a risk of injury from the hairdresser’s scissors.
The behaviour exhibited by SAP has resulted in harm or the risk of harm to SAP. Reactive strategies to reduce or eliminate the behaviour have not been successful and a decision is required about the use of restrictive strategies in the form of mechanical and physical restraint.
Evidence from Dr Alan Wallace was provided to the Tribunal. Dr Wallace had known SAP for 12 years. Dr Wallace reported that SAP has a congenital intellectual impairment. Dr Wallace expressed an opinion that SAP would be unable to understand and act on information about the use of restrictive practices and that he could not make any simple or complex decisions about the use of restrictive practices due to his intellectual disability.
The opinions expressed by Dr Wallace were supported by the assessment conducted by TR. The Tribunal accepts the medical evidence. The Tribunal finds that SAP has an intellectual impairment that results in an inability to understand the nature and consequences of decisions about the use of restrictive practices to respond to his challenging behaviour.
10. The Guardianship and Administration Act 2000 (the Act) defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
a)understanding the nature and effect of decisions about the matter; and
b)freely and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
11. The Tribunal is satisfied that SAP has impaired capacity for making decisions about the use of restrictive practices.
12. Evidence has been provided to the Tribunal that certain preventative strategies have been recommended by TR for the times before SAP engages in hand mouthing that may minimise the behaviour and harm resulting from the behaviour. Those positive behaviour strategies include care workers assisting SAP to participate in activities that provide him with opportunities for various types of sensory stimulation and to build these opportunities into his daily routine i.e. assist SAP to shower using a loofah and textured shower gel, to choose clothes with fabrics of different textures.
13. Other positive strategies involve assisting SAP to take part in activities such as making meals or household tasks or to increase his interaction with other people by talking with him each time staff members walk by him.
14. TR recommended certain reactive strategies such as distracting SAP when he is observed to begin hand mouthing, using gentle verbal prompts to take his hand out of his mouth or to gently guide his hand away from his mouth.
15. The assessment by TR reveals that these positive and reactive strategies do not effectively manage the hand mouthing behaviour. She has recommended use of a mechanical restraint in the form of an elbow splint in a time limited manner only whenever other less restrictive strategies are unsuccessful in minimising the skin damage caused by hand mouthing.
16. It has been recommended that SAP should only wear an elbow splint when the skin on his hand becomes reddened or shows signs of deteriorating from constant hand mouthing behaviour. At all other times, wearing a splint should not be part of SAP’s regular routine with the exception of 10 minutes after each meal to prevent regurgitation which can occur with hand mouthing at such times.
17. The assessment recommended that the splint must be removed while SAP is eating, drinking, participating in activities and before retiring at night. A recommendation was made in the assessment that SAP should not wear the splint for longer than 2 hours at a time.
18. TR reported that preventative strategies should be used to minimise harm when SAP is having his hair trimmed. Care workers should explain what is happening and provide SAP with sensory objects to redirect his attention from the sensation of having the hair around his ears trimmed. If those strategies are ineffective, physical restraint is recommended by supporting SAP’s head while the hair is being trimmed.
19. The use of an elbow splint and the use of physical support of SAP’s head when his hair is trimmed may give rise to civil or criminal liability against his care providers in view of the inability of SAP to give consent to those practices. However section 123ZZC of the Disability Services Act 2006 provides that there is immunity from liability if the restrictive practice is used in compliance with a positive behaviour support plan and with the consent of a relevant decision maker under that Act.
20. The Tribunal had appointed SAP’s mother as the guardian for restrictive practice for SAP on 18 June 2009. That guardian was a relevant decision maker under the Disability Services Act 2006 and the guardian for restrictive practice had consented to the use of mechanical restraint and physical restraint in accordance with a positive behaviour support plan that was prepared under section 123L of the Disability Services Act 2006. The appointment of the guardian for restrictive practice was for a period of 12 months and would expire on 18 June 2010.
21. The Tribunal conducted a review of the appointment under section 31 of the Guardianship and Administration Act 2000 on 17 June 2010. In addition to examining the evidence as to whether the current appointee was competent and appropriate as required by section 31, the Tribunal also considered the evidence in order to determine whether an appointment was necessary in terms of section 80ZD of the Guardianship and Administration Act 2000.
22. The Tribunal was satisfied that the evidence had established that SAP would cause harm to himself by continuing to engage in hand mouthing and by moving his head when scissors were being used to trim his hair around his ears. The Tribunal was satisfied that SAP’s interests would not be adequately protected unless both positive and restrictive strategies are used to manage his behaviour as at this point in time the use of both types of strategies is the only effective means to reduce the harm from that behaviour.
23. The Tribunal was satisfied that without the appointment of a guardian for restrictive practices, the use of mechanical restraint and physical restraint would not be likely to occur due to liability concerns. By appointing SAP’s mother as the guardian for restrictive practices for a further 12 months the use of positive and restrictive strategies could continue with her consent and could be managed under a positive behaviour support plan that is regularly reviewed and monitored to ensure that the least restrictive methods are used and that efforts are in place to improve SAP’s quality of life. The Tribunal is satisfied that SAP’s mother has been a competent and appropriate guardian for restrictive practices and that she should be appointed for a further 12 month period.
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