SID (Approval Restrictive Intervention)

[2012] TASGAB 38

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

SID – Application for Approval of a Restrictive Intervention by Optia Inc.

SID (Approval Restrictive Intervention) [2012] TASGAB 38

REASONS FOR DECISION

Anita Smith (President)
Colin McKenzie (Deputy President)
Abigail Bindoff (Member)

Date of Hearing: 29 November 2012

Restrictive Interventions – least restrictive alternative – self defence or defence of another, duty of care – brief physical containment in circumstances of risk - can an Intervention Plan with emergency responses be a restrictive intervention of itself? – medication to control behaviour consented to by person responsible – proposed intervention is lawful, a failure to intervene would be unlawful

Disability Services Act 2011 Pt. 6, s.4, 34, 36, 41, 42
Criminal Code Act 1924 s. 46
Guardianship and Administration Act 1995 s. 6, 43
Guardianship and Administration Regulations 2007 reg. 7

1. On 23 August 2012 the Board received an application via the Acting Senior Practitioner for approval of a restrictive intervention from Optia Inc. which is a disability support provider that provides residential support for SID who is 19 years of age.  He has been in their care since August 2011.  Prior to August 2011, SID lived with his mother, MI with occasional support from his father, ED, who lives separately.   Due to his autism, SID is unable to communicate verbally but has some known gestures for communicating his needs and wants.  He has a full range of mobility. 

2. On 1 January 2012, the Disability Services Act 2011 (the Act) commenced.  Part 6 of the Act creates a scheme of application and approval of restrictive interventions for disability services providers either by the Secretary of the Department of Health and Human Services for environmental restriction or by the Guardianship and Administration Board for personal restriction.

3. Due to some compulsive behaviours that SID occasionally displays, usually in response to stressors, it is sometimes necessary for Optia Inc. staff, as a last resort, to physically remove him from physical risks, such as exposed electrical wires or broken glass, or to manage or avoid interpersonal conflict between SID and third parties.  If verbal instruction or offering distractions have no effect, staff at Optia may need to physically remove SID from the risk.   The applicant considered that the actions of physically removing SID may be a personal restriction within the definition in section 34 of the Act and accordingly made this application. 

4. The Board convened a hearing of the application on 29 November 2012 at which the following persons attended:

   ·Mr. Sasha Wong, appointed pursuant to section 10 of the Guardianship and Administration Act 1995 as an Australian legal practitioner to assist the Board in these proceedings

   ·MI, mother

   ·ED, father

   ·Ms. Rebecca Thompson, disability advocate for MI and ED

   ·Ms. Kristen Webb-Foss, Senior Practitioner

   ·Ms. Nicole Crates, Applicant, Optia Inc.

   ·Mr. Paul Collins, Optia Inc.

   ·Ms. Heather Wilson, Speech Pathologist

   ·Mr. Peter Moore, Disability Services, observer

   ·Ms. Elizabeth Dalgleish, GAB Investigator

The Proposed Intervention:

1. This application concerns a document called Brief Functional Analysis and Intervention Plan (revised 18 June 2012) developed specifically in relation to SID’s care.  The plan sets out extensive information under the following headings:

   I.Brief Client Description

   II.Health and Medication

   III.Living Arrangement and Family History

   IV.Daytime Services Received and Day Service History

   V.Current behaviour problems

   VI.Contextual Analysis

   VII.Functional Analysis

   The Current behaviour problems include: “head butting others, hitting others, kicking others, damaging property, hitting head against hard surfaces.”  The papers also mentioned SID’s tendency to tamper with electrical switches, sometimes destroying them and leaving wires exposed.

2. Included in information under the final heading is an ‘Intervention Plan’.  This contains a number of strategies under the following headings:

   A.    Ecological Strategies

   B.     Skills Development

   C.     Direct Treatment

   D.    Reactive Strategies

   “Reactive Strategies” outlines some dot points of functionally related and non-functionally related strategies and refers the reader to Appendix 1.  Appendix 1 outlines dot points under the following headings:

   Environment and Team Work
   Offer assistance
   Stimulus change and redirection/distraction
   Give clear verbal instructions in a firm, assertive voice using language that is easily understood
   Offer more assistance
   Physical containment

3. The Physical Containments are described as follows (pages 75-76 of the Board’s papers):

   “Physical containment:

   ·     Use furniture and cushions to create a barrier between yourself and SID if he is attempting to hit you, while using strategies described above to de-escalate the situation.

   ·     You may need to deflect hits or kicks, where possible use cushions as a barrier to minimise risk of injury to yourself and SID.

   ·     Secure the gate to the kitchen if there are risks present such as hot food or a hot jug as SID tends to push objects off surfaces in a large sweeping movement using his arm.

   As a last resort!

   ·     You may need to move SID away from other clients, a staff member or move SID away from danger such as broken glass or exposed [electrical] wires.

   ·     Use the one person escort as taught in PART Training to relocate SID to a safer space.  This involves approaching SID from behind, grasping his shirt firmly and twisting hand to the left while grasping his pants and twisting hand to the right, raise hands slightly so SID’s point of balance moves up onto balls of feet and slightly forward.  With arms extended walk SID to a safe space and remove grip and step back.

   ·     If two people are present and able to assist it may be safer and more dignified to use a two-person escort.

   ·     Only maintain this restraint until he is located in a safer area. 

   ·     If in a vehicle and not safe to pull over and exit vehicle it may be helpful to rest your legs on SID’s as it has been noted that firm pressure tends to reduce kicking.  If this is not successful and he is still hitting or kicking it may be necessary to restrain a limb with firm pressure on the long bone until you can exit the vehicle safely.

   Put your head down if you think you will be head-butted, presenting the hard bony part of your head and protecting your face and or use a cushion as a barrier!

   ***When appropriate, allow SID to say ‘sorry’ by holding out your hand whilst portraying a sense of confidence and maintaining safety.****

   When SID is calm but engaging in a dangerous practice for example pulling at [an electrical] switch, about to grab a hot pot …
   Approaching from behind wrap your arms around him and put pressure on his upper arms.  Comparable to pressure applied during a massage.
   SID will lean back into you as he likes this type of contact and walk where you direct.  Move him to a safe area and redirect to an activity.
   Under no circumstances do this when SID is agitated as you are likely to be head butted and are in a vulnerable position.”

   No party opposed any part of the Intervention Plan or the application.   SID’s parents stressed the importance of staff using the Physical Containment responses when required, lest Optia staff may be unwilling to continue to allow him the degree of supervised freedom he currently enjoys. 

4. It is clear that the Intervention Plan concentrates on holistic and preventive strategies in relation to SID’s behaviours and that the physical containments are to be applied only when all else has failed and in response to direct danger to SID or another person.  It is also clear that the interventions are used to respond to risks that emerge and develop unpredictably and that, when applied, they endure for less than five minutes at a time.  The primary issue for the Board at the hearing was whether the responses set out in the paragraph headed ‘Physical Containment’ amount to restrictive interventions within the meaning of the Act and, if so, whether approval by the Board is necessary to make such interventions lawful.

Formal Matters Arising under the Disability Services Act 2011:

1. The applicant is a disability services provider within the meaning of the Act and is therefore a proper applicant for the purposes of section 41 of the Act.  The application contained a statement from both the Acting Senior Practitioner and the subsequently appointed Senior Practitioner that he and she were of the opinion that the Board ought to grant the approval as is required by section 41(2)(c) of the Act.   The Board was satisfied on the basis of extensive medical reports filed by the applicant that SID is a person with a disability and that by reason of his disability he is incapable of giving consent to the carrying out of the proposed intervention. 

2. Mr. Wong informed the Board that he had been nominated by SID with respect to this application.  The fact and intent of that nomination was confirmed by Mr. Collins who was present, though both Mr. Collins and Mr. Wong indicated that SID would have had limited understanding of the significance of that nomination.  Circumstances of Mr. Wong’s appointment as legal practitioner assisting the Board are set out in the interim decision, SID (Interim Administration) [2012] TASGAB 32. For the purposes of section 42(3)(a) of the Act, the Board consulted with Mr. Wong acting on SID’s behalf during the hearing. Mr. Wong did not oppose the application.

3. The applicant nominated Ms. Heather Wilson as a person with expertise in carrying out a restrictive intervention of the type contemplated by the application.   Ms. Wilson is a speech pathologist and an expert in communication.  For the purposes of section 42(3)(b) of the Act, the Board consulted with Ms. Wilson during the hearing.  However, it was also suggested at the hearing that the applicant, Ms. Crates, is a person with the requisite expertise given that she has expertise in de-escalation techniques, is an accredited PART trainer by the Institute of Applied Behaviour Analysis.  Naturally, Ms. Crates was also consulted during the hearing.   Neither person opposed the application. 

Consideration:
Self defence or defence or another:

1. Firstly, many of the responses described under ‘Physical Containment’ would appear to be a justified defence of the staff members or other persons, using such physical force as it is reasonable to use in the circumstances.  To that extent, if such responses were undertaken in accordance with the plan, they would be lawful as actions of self defence or defence of another. 

Duty of Care and Other Legal Responsibilities:

1. Secondly, the Board notes that if staff members fail to physically remove SID from the potential risks associated with broken glass, exposed electrical wires, assaulting staff or other persons or repeated head butting of hard surfaces, such a failure would most likely be a breach of other lawful obligations (some statutory and some arising under common law) upon the staff and the organisation for whom they work, such as observing a duty of care to residents (including SID) and staff, or obligations to promote occupational health and safety.  The consequences of not restraining SID are that he might be electrocuted, suffer a head injury or other serious injury or another person may be injured.  In other words, outside of the regime of the Act, the ‘Physical Containments’ as described in the Intervention Plan, are not only lawful but would be expected so as to comply with Optia Inc.’s lawful duties to residents, staff and other persons with whom SID has contact. 

Is an Intervention Plan a Restrictive Intervention?

1. It is consistent with the legal responsibilities set out in the paragraph 13 above, that Optia Inc. has a designated plan to provide detailed instructions for staff as to how to respond in circumstances where SID’s behaviour causes a direct risk to himself or to others.  The mere making of a plan to respond to the risk is not a restrictive intervention of itself.  Activities in this plan do not become a restrictive intervention until the plan is acted upon.  Optia Inc. is not required to seek the Board’s approval just because emergency or responsive interventions have been nominated in a plan.  This is reinforced by the fact that the plan concentrates upon not using the ‘Physical Containments’ but avoiding them if at all possible and only implementing them as a last resort. 

2. For instance, a disability service provider may develop an emergency response plan for responding to a fire risk which would include physically removing people with mobility disabilities from the provider’s premises when there is a fire or smoke risk.  The plan itself is not an intervention and does not require approval.   By contrast, a behaviour management plan that included set periods of seclusion and restraint (e.g. 10 minutes “quiet time” alone in a secure room after a person has demonstrated specified negative behaviours) as part of a consistent negative reinforcement strategy responding to known negative behaviours is more likely to be considered a restrictive intervention requiring approval.   In other words, depending on the action required and the circumstances that will prompt it, some plans may require approval.

Frequency and likelihood of the ‘Physical Containments’ being applied:

1. Documentation (page 298 of the Board’s papers) supplied to the Board by the applicant showed that physical contact had been applied to SID by staff on five occasions in the past six months.   The Board analysed these incidents as follows:

   (a)   Two incidents related to administering medication to SID, which the Board considered were ‘taken for therapeutic purposes’ within the meaning of section 4 of the Act, which disqualifies them from being a restrictive intervention.

   (b)   One incident occurred in a motor vehicle and was therefore ‘taken to enable the safe transportation of the person’ and is also excluded from the definition of a restrictive intervention.

   (c)   One incident involved removing SID from proximity to broken glass.

   (d)   One incident immediately followed an assault on a staff member by SID in which another staff member pushed him back to prevent a second assault.

1. Therefore in six months only two interventions could meet the definition of being a restrictive intervention.  Both were limited in duration to the time necessary for deflection or removal of an immediate risk, estimated to be only one or two minutes and less than five minutes. 

2. Page 102 of the Board’s papers is a chart recording the number of 15 minute intervals in which behaviour of various types [self-injury, property damage, hitting, head butting and kicking] occurred since SID’s admission in August 2011.  The chart noted that the occurrence of SID’s self-injurious behaviour was limited to the weeks 7 May 2012 to 21 May 2012.  It also showed a pattern of general decline in occurrences of property damage, head butting and kicking, although hitting remains a fairly constant behaviour.  The highest recording of behaviours was in the week 3 October 2011 with over eighty 15 minute intervals in which behaviour occurred in that week.  Of the five interventions noted above, four of them occurred in weeks where SID’s behaviours exceeded twenty 15 minute intervals where behaviour occurred.  From this chart the Board notes that SID exhibits problem behaviours far more often than he is restrained.  The Board also notes that strategies to calm SID appear to be working given the reduction in problem behaviours already demonstrated. 

Medication to control SID’s behaviour: 

1. SID is medicated with a number of antipsychotic medications to control his behaviour. These medications are consented to by his parents as ‘persons responsible’ pursuant to section 43 of the Guardianship and Administration Act 1995 and regulation 7 of the Guardianship and Administration Regulations 2007.  Administration of these medications does not need to be considered by the Board, as they are already ‘authorised under an enactment relating …. to guardianship’ and are therefore excluded from the section 4 definition of restrictive interventions. 

Application of the Act:

1. The Board took the view that it could approve the proposed interventions if deemed necessary.  However, the Board also noted the principles in the Guardianship and Administration Act 1995 as follows:

   “A function or power conferred, or duty imposed, by this Act is to be performed so that –

   (a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and

   (b)the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   (c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”

2. In addition section 5 of the relevant Act requires that, so far as is practicable, and having regard to the intellectual capacity of the person with disability, decisions or actions that may directly affect a person with disability “should only result in the restriction of the freedom of decision and action of the person, if at all, to the smallest extent that is practicable in the circumstances”.

3. The applicant acknowledged that it made this application because of concerns that the responses set out in the Intervention Plan might be unlawful.  As explained above, if deployed in accordance with the Intervention Plan, such responses are highly likely to be lawful and the opposite may be true, that is, a failure to deploy such responses might be unlawful.  The Board considered whether section 36 of the Act might render the behaviours proposed by the Plan unlawful. 

4. Section 36 establishes an offence for a disability services provider to carry out a restrictive intervention without approval.  Subsection (2) of section 36 sets out the following defence:

   “(2) It is a defence to a charge of an offence against subsection (1) in relation to a person with disability if –

   (a) the disability services provider or funded private person establishes that the carrying out of the restrictive intervention in relation to the person with disability was required to protect the person with disability, or another person, from serious harm; and

   (b) the restrictive intervention carried out was the least intrusive type of restrictive intervention that would have protected the person with disability, or another person, from serious harm; and

   (c) the Senior Practitioner was notified by the disability services provider or funded private person as soon as practicable after the restrictive intervention was carried out; and

   (d) no restrictive intervention, other than under an approval under section 38 or section 42, was carried out in relation to the person with disability after 72 hours after the restrictive intervention was first carried out in relation to the person; and

   (e) there is no relevant authorisation in relation to the person with disability.”

5. To re-iterate, the Physical Containment aspects of the Intervention Plan would only be invoked when required to protect SID, or another person, from serious harm and the interventions described are the least restrictive available in the circumstances.  The evidence before the Board was that interventions last only a matter of minutes and no intervention would ever proceed beyond 72 hours.  The Board considers that, subject to Optia Inc. giving the Senior Practitioner the requisite notice and the practice being ceased well within 72 hours of commencement, any responses to SID’s behaviour that is implemented in accordance with the Intervention Plan would be excused pursuant to section 36(2) of the Act. 

1. The Board has deliberately taken a narrow view of the construction of section 36 because it is a penal provision.  The Board considers that the defence would arise on an incident by incident basis, so it would be possible to defend more than one episode occurring in a 72 hour period so long as each episode is less than 72 duration and each is reported to the Senior Practitioner. 

2. For the removal of doubt, the Board also considers that section 46 of the Criminal Code Act 1924 (self defence and defence of another) would be ‘an authorisation under another enactment’ for the purposes of section 36(3) of the Act. 

3. The Board considered that this explanation (in this statement of reasons) of the lawfulness of the Physical Containment explained in the Intervention Plan was a less restrictive alternative than either approving the intervention for six months pursuant to section 42 of the Act or appointment of a guardian pursuant to section 42(7)(b) of the Act. 

4. The Board considered that SID’s best interests will be protected because the Senior Practitioner will be monitoring notifications issued pursuant to section 36(2)(c) of the Act.  Should a pattern emerge or should any such notification cause the Senior Practitioner concern, she will either engage in development activities with Optia Inc. staff to reduce the interventions or encourage a fresh application with regard to approval of restrictive interventions. 

5. The Board therefore considers it appropriate to dismiss the application for approval, not because the Intervention Plan anticipates any inappropriate responses to SID’s behaviour, but because there is a less restrictive means to ensure the lawfulness of Optia Inc.’s Intervention Plan. 

6. The Board would like to acknowledge the work of the applicant in providing over 300 pages of reports and papers relevant to this application. 

Anita Smith
PRESIDENT