TVC

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TVC [2024] QCAT 410

PARTIES:

In applications about matters concerning TVC

APPLICATION NO/S:

GAA2630-24
GAA2632-24
GAA2634-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

13 August 2024 (ex tempore)

HEARING DATE:

13 August 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne (Presiding)
Member Munasinghe

ORDERS:

1.   The Public Advocate has leave to intervene in the proceedings GAA2630-24, GAA2632-24 and GAA2634-24.

2. Pursuant to s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal declares:

(a) Requested alone time by TVC is not “seclusion” for the purposes of s 80V of the Guardianship and Administration Act 2000 (Qld) when TVC’s requests to self-isolate are immediately met.

(b) TVC’s request to no longer self-isolate in circumstances when TVC’s requests is not immediately met is “seclusion” for the purposes of s 80V of the Guardianship and Administration Act 2000 (Qld).

3.   The Tribunal approves Essence Quality Care:

(a)     containing;

(b)     secluding;

(c)     physically restraining; and

(d)     restricting TVC’s access to objects

in accordance with the Positive Behaviour Support Plan dated 16 July 2024 subject to any changes notified by the Department of Child Safety, Seniors and Disability Services.

4.   Unless the Tribunal orders otherwise, this approval remains current for six (6) months.

5.   This order is made subject to the following conditions:

(a)     The Department of Child Safety, Seniors and Disability Services provide assistance and report on any changes to funding arrangements and how TVC is to be supported in his current home environment and when accessing the community to ensure any restrictive practices in use are the least restrictive and in compliance with the Forensic Disability Order Conditions.

(b)     The Department of Child Safety, Seniors and Disability Services to draw on the best expertise available to improve the ability of the Positive Behaviour Support Plan to see a stepped reduction in the use of restrictive practices on TVC.

(c)     The Department of Child Safety, Seniors and Disability Services to explore the use of assistive technology to facilitate TVC to have greater control over his home environment.

(d)     The Public Guardian is to provide an update to the Tribunal and all interested parties in relation to the funding arrangements for TVC at least two (2) weeks prior to 30 September 2024.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – PARTICULAR CASES –– where service provider seeks approval of containment, seclusion and other restrictive practices in accordance with a positive behaviour support plan – whether a positive behaviour support plan has been developed – where the adult is subject to a forensic disability order under the Mental Health Act 2016 (Qld) – where the adult has a reported history of behaviours of harm to self and others including sexualised behaviours towards others – whether requested alone time is seclusion – where the tribunal considered the meaning of “seclusion” under the Disability Services Act 2006 (Qld) – where the tribunal made a declaration under the Queensland Civil and Administration Tribunal Act 2009 (Qld) – whether the adult has impaired capacity for making decisions – whether there is need to contain or seclude and use other restrictive practices – where the tribunal approved the use of containment, seclusion and other restrictive practices subject to conditions – where the tribunal made conditions for the use of containment, seclusion and other restrictive practices

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION –where the Tribunal identified human rights affected by the decision – where the Tribunal considered whether the decision was compatible with human rights – where the Tribunal considered whether limits to any human rights were reasonable and justified

Disability Services Act 2006 (Qld), s 144
Guardianship and Administration Act 2000 (Qld), s 80S, s 80V, s 80W, s 80X, s 103
Human Rights Act 2019 (Qld), s 13, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 60

APPEARANCES & REPRESENTATION:

Adult:

Mary Burgess, legal representative, Queensland Advocacy for Inclusion

Applicant:

Heather Cesarano, Essence Quality Care

The Department:

Daniel Robertson, in-house legal counsel

Public Advocate

John Chesterman

Public Guardian

Rocco De Pierri

James Houghton

REASONS FOR DECISION

This is a proceeding concerning TVC, file reference [Redacted]. The applications before the Tribunal are for the approval of containment, seclusion, and for the use of other restrictive practices.
TVC is a 36 year old man living in a purpose-built disability accommodation facility owned by the Department of Child Safety, Seniors, and Disability Services (‘the Department’). TVC has been living in this setting since the 27^th of November 2023. Prior to living in his current accommodation setting, TVC was residing in accommodation supported by the Forensic Disability Service since 2011. It is important to pause here and make reference to an extract contained in a report prepared by the Ombudsman in 2019, commissioned by the Department at that time responsible for the delivery of disability services and the operation of the Forensic Disability Services. The excerpt written by a well-respected clinician and referred to as the “Lambrick Report” provides an overview of the specific complexity of TVC’s case:
TVC’s presentation in the circumstances are enormously complex, and perhaps the most complex and concerning case within the reviewer’s range of experience. His circumstances are the product of many years of restriction that commenced well before his intake into the Forensic Disability Service.
Turning back to TVC’s current accommodation setting, modifications to his accommodation were necessary due to property damage by TVC and to ensure TVC’s safety and the safety of others, including support staff. Since April 2024, TVC has not been able to leave the property unsupported due to Lexan and steel frames being fitted to the observation windows and deadbolts fitted to the doors. In his present accommodation setting, support workers from Essence Quality Care use restrictive practices that are said to be necessary to prevent TVC’s behaviour causing harm to himself and others, and these restrictive practices have been in use in accordance with a Short-Term Approval dated the 29^th of July 2024.
The restrictive practices being used as identified in the Positive Behaviour Support Plan dated the 16^th of July 2024 as being: containment at all times unless when accessing escorted leave; restricting access to objects, namely, knives and sharps and TVC does not have access to any lighters or items that can be used to light fires; seclusion to be used in response to behaviours of harm to self or others; and physical restraint to be used as a last resort.
The matter before the Tribunal today is the application received and completed by Heather Cesarano of Essence Quality Care for approval by the Tribunal for containment, seclusion, and other restrictive practices. Relevantly, section 80V of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) provides that the tribunal may, by order, give approval for a relevant service provider to contain or seclude an adult, subject to conditions stated in the order, only if satisfied certain requirements have been met.
Further, section 80W provides the relevant matters to be considered by the Tribunal in deciding whether to give a containment or seclusion approval. The Tribunal may also approve the use of other restrictive practices under section 80X to be used by the relevant service provider, again only if satisfied of the matters stated in section 80V(2) of the GA Act.
The Tribunal is assisted today by submissions made from the Department; representatives from the Queensland Advocacy Inclusion; the Public Guardian; and the Public Advocate. Relevantly, the Tribunal gave leave to the Public Advocate to intervene in the proceedings.
The Tribunal was satisfied in giving leave to the Public Advocate to intervene because there were issues raised by the Office of Public Guardian in terms of concerns about TVC, and issues raised by Queensland Advocacy Inclusion, and indeed the Public Advocate, about TVC’s human rights, namely, that he has been in seclusion in his current accommodation, as well as at the Forensic Disability Service for approximately twelve (12) years. Further, TVC was previously held at a different facility run by the then Disability Services from the day of his 18^th birthday. The Public Advocate also raises concerns about the importance and need for a complete and robust Positive Behaviour Support Plan in complex matters, and submits that there are a number of issues with the plan.
There was also an issue that the Tribunal was required to address in the hearing, and indeed required further consideration about whether requested alone time by TVC meets the definition of “seclusion” as defined under section 144 of the Disability Services Act 2006 (Qld) (‘DS Act’). Section 144 provides that “seclude” means physically confine the adult alone, at any time of the day or night, in a room or area from which free exit is prevented in response to the adult’s behaviour that causes harm to the adult or others.
The practice in use here is requested alone time which happens when TVC requests to staff to self-isolate and is not a practice used by a relevant service provider in response to TVC’s behaviours that causes harm to himself or others. Relevantly, the purpose of chapter 5B as stated in section 80S of the GA Act is, amongst other things, to give the Tribunal the power to approve a relevant service provider to contain or seclude an adult and to review the approval. However, section 80V of the Act gives the Tribunal the power to give approval for a relevant service provider to contain or seclude an adult subject to conditions stated in the order.
Section 80V, when read together with relevant provisions of the DS Act such as the meaning of “seclude”, makes clear that the use of restrictive practices by a relevant service provider is in response to the adult’s behaviours of harm to themselves or others. As considered in the hearing today, the various submissions advanced were that there needs to be a distinction between “seclusion” and requested alone time because without such a distinction the Tribunal may, in fact, be approving seclusion in circumstances where TVC has expressed a clear view or desire to have some alone time, and the approval may, in fact, go beyond the scope and definition of seclusion, as intended by the legislation, and this is in circumstances where TVC’s relevant human rights will be engaged and limited, and may not be reasonable and justified.
The Tribunal is satisfied that a request by TVC to self-isolate, referred to as “requested alone time”, happens because TVC chooses to self-isolate. Requested alone time is not, in the Tribunal’s view, seclusion for the purposes of section 80V, as that word is defined under section 144 of the DS Act. That is not to say that the requested alone time should not be documented or reported in the Positive Behaviour Support Plan. There is good reason to do so, because it is relevant to TVC’s quality of life and his behaviours generally that need to be viewed as a whole, having regard to his complex history of being institutionalised for many years.
Further, to not document requested alone time may have the unintended consequence of unapproved periods of time where TVC is left, in effect, alone and possibly in isolation away from support workers for days at a time. This may also have the unintended consequence of infringing on TVC’s human rights that the Tribunal must consider in approving any use of containment and seclusion, and other restrictive practices. It must also consider that there is a Positive Behaviour Support Plan that has been developed for TVC that provides for the restrictive practices, and amongst other things that his quality of life will be improved, and indeed that the restrictive practices are used in compliance with the approval in the least restrictive way, ensuring TVC’s safety of himself and others.
There was a compelling submission made by Mr Robertson for the Department that there are concerns around systemic use of an election to self-isolate if not captured in a plan and identified by way of clarifying when a decision to self-isolate is or is not seclusion. Therefore, pursuant to section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal declares:
1.Requested alone time by TVC is not “seclusion” for the purposes of section 80V of the Guardianship and Administration Act 2000 (Qld) when TVC’s requests to self-isolate is immediately met.
2.TVC’s request to no longer self-isolate in circumstances where TVC’s request is not immediately met is seclusion for the purposes of the section 80V of the Guardianship and Administration Act 2000 (Qld).
Turning now to whether the Tribunal should approve the use of containment or seclusion with other restrictive practices. The Tribunal has identified the relevant sections and is grateful to all who appeared who have given countless hours of their time to work together and to raise issues that are relevant to this application today, and importantly, issues that are important and relevant to TVC being recognised as a person who is entitled to autonomy in his decision-making and to a quality of life that for many years he has not had and the support of those advocating for him.
Now, in addressing the matters relevant to section 80V, the Tribunal is required to consider, first: whether TVC has impaired capacity for making decisions about containment or seclusion and other restrictive practices; whether there is a need for the relevant service provider to contain or seclude TVC because of his behaviours that have previously resulted in harm to himself or others; and being satisfied there is a reasonable likelihood that if approval is not given, TVC’s behaviour will cause harm to himself or others. There is before the Tribunal a Positive Behaviour Support Plan that has been developed for TVC that provides for the containment or seclusion and the use of other restrictive practices, that, subject to conditions and some directions to be made today, is, in the Tribunal’s view, the least restrictive ensuring the safety of TVC and others.
TVC has been adequately assessed, and the Tribunal takes into account the views of the Senior Practitioner responsible for the care and support of TVC, who is subject to a Forensic Disability Order with conditions. The Tribunal is also required to be satisfied that the plan, if implemented, will reduce or eliminate the risk of harm, and TVC’s quality of life will be improved. Again, there are some issues or concerns that have been discussed in the hearing today, and the Tribunal, having taken into account those issues, will proceed to give a short-term approval with some directions to be made.
The plan before the Tribunal provides for observations and monitoring. The Tribunal has considered: the suitability of environment in which TVC will be contained, secluded, and the other restrictive practices in use; the terms of the Forensic Order with conditions; the views of the authorised specialist in relation to the Forensic Disability Order and the containment and seclusion; and the strategies in use including restrictive practices previously used to manage or reduce TVC’s behaviour of harm to himself and others.
There are also issues discussed with respect of the types of disability services provided to TVC and, again, some directions have been made that will be relevant to the review of the approval. In relation to capacity, the Tribunal has considered the Positive Behaviour Support Plan. TVC has a long service provider history due to complexity and risks associated with his behaviours, and he has spent most of his life in various institutional settings. As captured in the plan, TVC had a traumatic birth history. TVC was diagnosed at three years of age with a chromosomal abnormality known as Jacobs syndrome. TVC has an intellectual disability. TVC is reported to have extremely low intellectual functioning, borderline personality disorder, emotionally unstable personality disorder, antisocial personality disorder and anxiety disorder.
The Tribunal accepts the medical evidence of Professor O’Brian, Psychologist, who reported on the 14^th of September 2011 that TVC has diagnosed autism, an intellectual disability, and no capacity for complex decisions in all areas of his life. Further, the Tribunal accepts the more recent evidence contained in a report completed by Dr Hatzipetrou dated the 13^th of March 2024, who refers to an intellectual disability that significantly impairs TVC’s ability to make informed decisions. TVC has a reported impairment in expressive and receptive communication, and diagnosed autism spectrum disorder. He is also reported to lack capacity for complex decisions including the use of restrictive practices.
The Tribunal finds that TVC is a 36 year old man with no capacity for decisions about complex matters, including his restrictive practice matters, due to a cognitive disability. He spent many years living in an accommodation setting where every aspect of his daily life is supported by service providers. TVC can communicate his thoughts, wishes, and views verbally about day-to-day activities, but requires extensive support by service providers and necessary accommodation to satisfy current conditions of a Forensic Disability Order. TVC has a history of behaviours of harm to himself and others, and as detailed in the Short-Term Approval and the Positive Behaviour Support Plan, there are restrictive practices in use by service providers in the accommodation setting where TVC resides. The use of restrictive practices and whether to give consent to their use involves complex decisions. TVC is unable to understand the nature and effect of decisions about his restrictive practice matters, including understanding the risk of harm to himself and others should those restrictive practices be used, due to his diagnosed intellectual disability. The presumption of capacity for restrictive practice matters is rebutted.
In relation to whether there is a need for the relevant service provider to contain or seclude with other restrictive practices, the Tribunal is satisfied there is a need for Essence Quality Care to contain and seclude and use other restrictive practices because TVC has behaviours that have previously resulted in harm to himself and others, and again, these are detailed in the Positive Behaviour Support Plan. The behaviours referred to includes physical aggression such as throwing items at staff, either over the fence or through the servery window, and using items as a weapon causing harm to staff. TVC has kicked doors off their hinges, meaning he is able to access staff areas and leave the premises. He has also broken windows and safety glass, and taken metal door handles from doors.
TVC has a reported history of sexualised behaviours towards others, including sexual assault of a child in 2012. Further, there is a reported history of self-injurious behaviours. TVC is subject to a Forensic Disability Order with conditions, including that he is under 24 hour supervision, and that TVC not have access to any fire lighting equipment or utensils capable of initiating fire, and that he not have contact with children. The Tribunal finds that there is reasonable likelihood that if approval is not given, TVC’s behaviour will cause harm to himself or others who are supporting him in his current accommodation setting. TVC struggles to regulate his emotions, and it is necessary to provide a safe and secure environment for him to return to baseline during periods of containment and seclusion, and that staff are able to observe him if necessary.

Further, TVC is subject to, as I said, Forensic Disability Order Conditions that requires him to be supported by staff at all times. The restrictive practices in use, I have already referred to, and as the Tribunal has indicated, are detailed in the most recent Positive Behaviour Support Plan. The Positive Behaviour Support Plan outlines an extensive assessment in regard to TVC’s behaviour, his living circumstances at the time, and the ways in which the risks of harm to himself and others would be reduced through the use of the restrictive practices. Observation and monitoring procedures are also outlined in the plan.
The Tribunal is satisfied that with the clarification or declaration as to when requested alone time is seclusion or is not seclusion for the purpose of section 80V of the GA Act, together with the directions that I will come to shortly, do permit the Tribunal to be satisfied as to the requirements of section 80V, section 80W and section 80X.
Importantly, the plan has strategies to proactively support TVC in the current home environment where he lives, and there was discussion in the hearing today, and again with reference to the Positive Behaviour Support Plan, about the times during which TVC will be secluded and the use of restrictive practices, including restricting access to objects, and the use of physical restraint being used only as a last resort.
There is a protocol for reporting of the incidents where seclusion and the other restrictive practices will be used, and the Tribunal, again subject to the conditions and directions being made today, can be satisfied that the plan, if fully implemented, will serve the purpose of reducing or eliminating the behaviours of harm and the strategies to be implemented for TVC will meet his needs and improve his quality of life. The Tribunal has considered the suitability of the environment in which TVC will be contained or secluded. The Tribunal, again after some consideration, accepts that at the review of the approval in six months’ time it will be important for the Tribunal to look at the suitability of the environment, ensuring that there is a reduction in the use of restrictive practices and an improvement in TVC’s quality of life, subject to directions that are necessary today. The orders are, in relation to the approval of the restrictive practices, I will read out again. First, I do need to address TVC’s relevant human rights.
In exercising the powers under the GA Act and the DS Act, the Tribunal is acting in an administrative capacity and is a public entity for the purposes of section 58 of the Human Rights Act 2019 (Qld) (‘HR Act’). The Tribunal is, therefore, required to make a decision in a way that is compatible with TVC’s human rights and, in making a decision, must give proper consideration to TVC’s relevant human rights. All agree in the hearing that the Tribunal is required to apply the Human Rights Act, and the Tribunal has considered the relevant human rights and the requirement under section 48 to interpret all statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
The following human rights are limited and engaged by the making of the Tribunal’s orders: TVC’s right to be recognised as a person before the law and his right to an entitlement to equal protection of the law without discrimination; TVC’s right to be protected from torture, cruel, inhumane or degrading treatment as a result of restrictive practices in use; to respond to behaviours of harm including containment at all times; and also seclusion in response to behaviours of harm to self and others; and other restrictive practices. TVC’s right to freedom of movement is also adversely affected and his right to privacy and reputation will be impacted because personal and sensitive information about him is being shared with others including Department officers and service providers who support him in his current home environment. TVC’s right to liberty and security must not be detained or deprived, and there is significant impact on TVC’s liberty by virtue of approving the containment, seclusion and restrictive practices.
However, the Tribunal has taken into account the Forensic Disability Order Conditions and has taken into account the Positive Behaviour Support Plan that has been developed and provides for when TVC will be secluded together with the conditions provided today for the order. TVC has been adequately assessed, and the use of the restrictive practices are necessary because there will be a risk of TVC causing harm to himself or others because of his behaviours, and his quality of life will, hopefully with the plan being used effectively – and there is no way of saying for sure until a review of that order in six months’ time – there will be a reduction in the restrictive practices used and TVC’s quality of life improved.
The rights, as I have said, are limited by the operation of the GA Act and the DS Act, which provides for the appointment of substituted decision makers to make decisions for a person who is found to have impaired decision-making capacity for a relevant matter and, as is the case here, for the Tribunal to approve the use of restrictive practices. The Act seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making and the adult’s right to adequate and appropriate support for decision making. The GA Act also acknowledges the right of a person with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. Further, the General Principles reflect relevant rights of a person with impaired decision-making capacity, and the relevant principles must be applied by a person or other entity that performs a function or exercises a power under the Act and that includes the Tribunal.
As the Tribunal has mentioned, regarding the restrictive practices, in particular seclusion – there has been a declaration made by the Tribunal to clarify when requested alone time by TVC is not seclusion, and this is relevant to TVC’s human rights because, in doing so, the Tribunal has taken into account TVC’s rights to express himself and when desired by TVC to request alone time. This in itself can be viewed as a positive strategy by TVC, and the Tribunal is satisfied that the Positive Behaviour Support Plan will reflect those times when there is seclusion and also when TVC has requested alone time. The limits imposed on TVC’s human rights by the making of these orders are therefore reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). The Tribunal has applied the Act including the General Principles and is satisfied that the orders with directions made are necessary and the least restrictive based on the information before the Tribunal. Relevantly, the approval will be current for six months.
I order that:
1.The Public Advocate has leave to intervene in the proceedings GAA2630-24, GAA2632-24 and GAA2634-24.
2.Pursuant to section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal declares:
(a) Requested alone time by TVC is not “seclusion” for the purposes of section 80V of the Guardianship and Administration Act 2000 (Qld) when TVC’s requests to self-isolate are immediately met.
(b) TVC’s request to no longer self-isolate in circumstances where TVC’s requests are not immediately met is “seclusion” for the purposes of section 80V of the Guardianship and Administration Act 2000 (Qld).
3.The Tribunal approves Essence Quality Care:
(a)     containing;
(b)     secluding;
(c)     physically restraining; and
(d)     restricting TVC’s access to objects
in accordance with the Positive Behaviour Support Plan dated the 16th of July 2024 subject to any changes notified by the Department of Child Safety, Seniors and Disability Services.
4.Unless the Tribunal orders otherwise, this approval remains current for six (6) months.
5.This order is made subject to the following conditions:
(a)     The Department of Child Safety, Seniors and Disability Services provide assistance and report on any changes to funding arrangements and how TVC is to be supported in his current home environment and when accessing the community to ensure any restrictive practices in use are the least restrictive and in compliance with the Forensic Disability Order Conditions.
(b)     The Department of Child Safety, Seniors and Disability Services to draw on best expertise available to improve the ability of the Positive Behaviour Support Plan to see a stepped reduction in the use of restrictive practices on TVC.
(c)     The Department of Child Safety, Seniors and Disability Services to explore the use of assistive technology to facilitate TVC to have greater control over his home environment.
(d)     The Public Guardian is to provide an update to the Tribunal and all interested parties in relation to the funding arrangements for TVC at least two (2) weeks prior to 30 September 2024.
The Tribunal records the documents that it considers to be credible, relevant and significant to an issue in the proceeding in accordance with section 103 of the GA Act. These include the Notice of Hearing dated the 29^th of July 2024, the certificate of advice of hearing dated the 13^th of August 2024, the Positive Behaviour Support Plan dated the 16^th of July 2024 and the addendum to the Positive Behaviour Support Plan dated the 16^th of July 2024.
The Tribunal has also considered the behaviour recording data sheet, which is the H301 document, the Public Guardian report dated the 14^th of June 2024, the short-term approval email dated 30^th July 2024, the Public Guardian report dated the 9^th of August 2024, Queensland Advocacy Inclusion submissions dated the 14^th of June 2024 and 8 August 2024, an email provided by Queensland Advocacy Inclusion dated the 7^th August 2024 and positive behaviour support feedback document H307, submissions of the Office of the Public Advocate dated the 7^th of August 2024, the report of Professor Gregory O’Brian dated the 21^st of August 2024 and the report of Dr Luke Hatzipetrou which is a document that will be filed by the Public Guardian.

[2024] QCAT 410

13 August 2024 (ex tempore)