WAG
[2012] QCAT 457
•31 August 2012
| CITATION: | WAG [2012] QCAT457 |
| PARTIES: | WAG |
| APPLICATION NUMBER: | GAA2333-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 20 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Presiding Member Michelle Howard, Member |
| DELIVERED ON: | 31 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for restrictive practices (general) for WAG. 2. The Guardian for restrictive practices (general) is directed to take steps to: (i) ensure a full medication review is undertaken for the adult within three (3) months; (ii) ensure an investigation into any side effects Androcur is having on the adult; (iii) develop a process with the adult’s service provider and general practitioner for monitoring the impact of any chemical restraint medications on the adult; (iv) within one (1) month of its completion, provide a copy of the Positive Behaviour Support Plan developed for the adult. 3. The guardian for restrictive practices (general) is to provide a copy of the latest Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the order if it has not already been provided to the Tribunal in accordance with this order. 4. Unless the Tribunal orders otherwise, this appointment remains current for twelve (12) months. |
| CATCHWORDS: | Guardian – Restrictive Practices – Chemical restraint – where adult’s behaviour places self and others at risk of harm – whether Androcur, an anti-libidinal drug, constitutes chemical restraint Disability Services Act 2006, ss 123E, 123F AAG, Re [2009] QGAAT 43 |
REASONS FOR DECISION
WAG lives in North Queensland. He had 24 hour support from a non government service provider, Care and Support.
Its manager, Paul Innes applied to QCAT seeking the appointment of the Adult Guardian as guardian for restrictive practices.
The basis of the application was that WAG has an intellectual disability and receives medications for the purposes of managing his behaviours. This is referred to as chemical restraint in the Disability Services Act 2006. One of these medications is Androcur which is used predominately to reduce sexual drive.
WAG recently attended a hearing of the Mental Health Court at which a forensic order was made. According to Paul Innes, a psychiatrist at that hearing was reported to have said that Androcur is not chemical restraint. Paul Innes sought leave of the Tribunal to withdraw his application. This was not granted and the application was heard on 20 August 2012.
The applicable legislative provisions are section 80ZD of the Guardianship and Administration Act 2000 (the Act) and section 123E and section 123F of the Disability Services Act 2006 (the DSA Act).
Together, these mean that if a medication is being administered for the primary purpose of controlling the behaviour of a person with intellectual disability, who receives funded services, a guardian for a restrictive practice matter needs to be appointed to make a decision about whether to consent to its use.
Capacity
It is accepted by the parties that WAG has an intellectual disability. Evidence was given at the hearing that WAG does not know why medications are prescribed for him. He understands he needs to take them. He does not understand the side effects.
The Tribunal is satisfied that the presumption of capacity as defined in Schedule 4 of the Act is rebutted.
Has WAG’s behaviour previously resulted in harm to himself or others?
WAG has a history of engaging in risky sexual behaviour including having unprotected sex. He previously physically assaulted a former female co-tenant. He has made some attempts at self harm. Potential harm in the form of WAG involving a 12 year old boy watching pornography on television has been reported.
Harm includes physical harm, or a serious risk of physical harm.[1]
[1] Disability Services Act 2006, s 123E.
The Tribunal is satisfied WAG’s behaviour has previously resulted in harm to himself or others.
Is there a need for a decision and an appointment?
A need for a decision-maker arises if WAG is subject to a restrictive practice. These are defined in section 123E of the Disability Services Act2006 and include chemical restraint.[2]
[2] Report of Dr Watson to Tribunal dated 25/1/2012.
There are 3 medications which WAG’s medical practitioner, Dr Watson has listed as medications used primarily to control WAG’s behaviour, as opposed to treating a diagnosed mental illness or physical condition.
These medications are:
§Fluoxetine – 10mg daily to decrease agitation
§Androcur – 25mg daily to decrease sexual drive
§Sereoquel – 10mg nocte to decrease agitation
The most controversial of these is Androcur, a medication to reduce sexual urges.
The former Guardianship and Administration Tribunal considered the question of whether Androcur was a medication to control behaviour in the matter of AAG.[3] This case involved AAG being on a forensic order because of his sexually deviant behaviour and his being permanently unfit for trial.
[3] AAG, Re [2009] QGAAT 43.
In this matter AAG did not have a diagnosis of mental illness, had no psychiatric history but had an intellectual disability and epilepsy. He was being treated with Androcur for his sexually disinhibited behaviour and to reduce his risk of reoffending.
There was unanimity amongst the parties in AAG that an adult who is not able to consent to medication because of an intellectual disability and who does not have a mental illness, cannot be compelled under a forensic order to take medication prescribed by a treating psychiatrist.
The Tribunal considered AAG did not have capacity to provide the consent to taking Androcur.
All parties considered the use of Androcur in AAG was for the purpose of behaviour modification.
It appears to this Tribunal that this is also the reason WAG is given the medication.
The Tribunal considers that Androcur is being used as a chemical restraint and as such a guardian for restrictive practice is required to consider whether consent should be given for its use.
The Tribunal appoints the Adult Guardian as guardian for restrictive practices (general) and make orders for a full medication review.
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