ST

[2010] QCAT 42

CITATION:    ST [2010] QCAT 42

PARTIES:   ST

APPLICATION NUMBER:            G19645

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   9 February 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   9 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application dismissed

CATCHWORDS: Early end to proceedings – section 47 Queensland Civil and Administrative Tribunal Act 2009 – application lacking substance

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. SB, father of ST, applied to the Guardianship and Administration Tribunal to be appointed as guardian for his son for restrictive practice matters on 28 October 2009. ST has an intellectual disability and is supported at home with his parents and in attending a day service run by Multicap. He has challenging behaviours as well.

2. SB had sought an appointment on the grounds that a decision maker is required regarding the management of ST’s aggressive outbursts which are displayed at least once a day at the Multicap service. The Multicap service staff use physical redirection to remove ST from other clients

when his behaviours deteriorate as a protective measure for both ST and other people. ST may be redirected to a quiet room where he can come and go. This process is physical restraint (section 123E of the Disability Services Act 2006) and not containment nor seclusion.

3. The day service Multicap comes within the category of a respite care/community access only service. In the event that physical restraint is required while a client is at the service then physical restraint can be approved by an informal decision maker if no guardian for restrictive practice matters has been appointed. The Guardianship and Administration Act 2000 specifies who is an informal decision maker (Schedule 4). SB is a member of ST’s support network being his father and with ST living at home with his parents. He is most appropriate to be the informal decision maker in this case.

4. Informal decision makers are able to give consent to certain restrictive practices. The informal decision maker  needs to be satisfied of certain things before giving consent to the use of restrictive practice in the course of provide respite or community access services to the adult (section 80ZS of the Guardianship and Administration Act 2000).

5. Section 80ZS (3) articulates that for giving consent to use of a restrictive practice mentioned in subsection (1)(b), the informal decision maker must-

(a)apply the general principles; and

(b)be satisfied-

(i)the adult’s behaviour has previously resulted in harm to the adult or others; and

(ii)there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others; and

(iii)use the restrictive practice in compliance with the respite/community access plan for the adult is the least restrictive way of ensuring the safety of the adult or others; and

(iv)if the respite/community access plan for the adult is implemented-

(A)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(B)the adult’s quality of life will be improved in the long term.

6. In the material provided to the Tribunal is evidence of a plan which details a comprehensive behavioural management strategy to address ST’s challenging behaviours, minimising risk to himself or others and improving his quality of life.

CONCLUSION

7. SB as ST’s father is the appropriate informal decision maker to consent to restrictive practices in this case. There is no need for the formal appointment of a guardian for restrictive practice matters as SB can undertake his decision making role in compliance with the Acts addressing restrictive practices. Multicap is a respite/community access services funded by the Department of Communities (Disability Services). The restrictive practice required is physical restraint and not containment or seclusion. There is in existence a plan to address the issues identified in a functional behavioural assessment undertaken in relation to ST.

8. In view of these matters, there is no need for appointment of a guardian for restrictive practice matters and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application should be dismissed.