WIB

[2018] QCAT 166

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WIB [2018] QCAT 166

PARTIES:

In applications about matters concerning WIB

APPLICATION NO/S:

GAA1701-18; GAA1702-18; GAA1703-18;
GAA1705-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

16 May 2018

HEARING DATE:

4 May 2018

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS:

RESTRICTIVE PRACTICES (Containment and Seclusion on own or with other Restrictive Practices) 

1.   The Tribunal approves House With No Steps: 

(a)   containing; 

(b)   physically restraining, namely (disengagement); and 

(c)    restricting access of WIB to objects, specifically sharp objects including knives, microwaves, toaster and kettle; 

in accordance with the Positive Behaviour Support Plan dated 20 April 2018 subject to any changes notified by the Chief Executive, Department of Communities, Disability Services and Seniors. 

2.   Unless the Tribunal orders otherwise, this approval remains current for 12 months.

GUARDIANSHIP - RESTRICTIVE PRACTICES 

3.   The appointment of LB and DB as guardians for restrictive practices (general) for WIB is revoked. 

GUARDIANSHIP 

4.   The appointment of LB and DB jointly and severally as guardians for WIB for the following personal matters is continued: 

(a)   Accommodation; 

(b)   Provision of services, including in relation to the National Disability Insurance Scheme; and 

(c)    Seeking help for, or making representations for WIB Ian Bevis for restrictive practices. 

5.   This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. 

ADMINISTRATION 

6.   The appointment of LB and DB as administrators for WIB for all financial matters is continued. 

7.   The Tribunal dispenses with the requirement for the administrators to provide a financial management plan. 

8.   The Tribunal grants a full exemption to the administrators from the requirement to provide annual accounts but directs the administrators to keep records of dealings and transactions involving the adult's income and property and directs the administrators to provide to the Tribunal within twenty-one (21) days of being notified that a review of their appointment has been commenced: 

(a)   copies of the adult's bank statements/passbooks/term deposits for the past year; 

(b)   a list of the adult's current assets and liabilities; 

(c)    a current fortnightly budget of income and expenditure; and 

(d)   a signed and witnessed Declaration as to continuing appropriateness for appointment. 

9.   This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPROVAL AND APPOINTMENT – where service provider proposes to use restrictive practices including containment in accordance with a positive behaviour support plan – where use of containment and other restrictive practices requires approval of Tribunal – where adult has impaired
decision-making capacity from moderate to severe intellectual disability – where adult has had instances property damage,  physical aggression  and eloping – whether adult has exhibited behaviours of harm – where appointment of a guardian for restrictive practices is reviewed – where appointment of guardian is reviewed – where appointment of administrator is reviewed

Guardianship and Administration Act 2000 (Qld), s 12,
s 31, s 80W, s 80X, s 80Z, s 80ZD, sch 1, sch 4

APPEARANCES & REPRESENTATION:

DB and LB, WIB’s parents

G Etheridge and C Stuart, House with No Steps

R Wooley, S Parkin and D Robertson (Delegate), Disability Services

REASONS FOR DECISION

1. An application for containment and review of the appointment of a Guardian for Restrictive Practices was listed for hearing before the Tribunal, together with the review of the appointment of an Administrator, and review of the appointment of a Guardian, for WIB.

2. WIB is a young man of 23 years of age who lives with another co-tenant with the 24-hour support of House With No Steps, a service provider funded by Disability Services. He has, according to the Positive Behaviour Support Plan (‘PBSP’) dated 20 April 2018, multiple conditions which affect his daily living and functioning.

3. WIB had a congenital hydrocephalous and has had shunts inserted to manage the fluid on his brain. He has also been diagnosed with an intellectual disability, epilepsy, autism and has a provisional diagnosis of Bipolar 1 Disorder:[1]

   His intellectual disability is related to a structural brain abnormality that includes a partial agenesis of the Corpus Callaseum and atrophy of the posterior frontal and parietal lobes.

   [1]PBSP for WIB dated 20 April 2018, 11.

4. The shunt inserted to manage the hydrocephalous has had to be reinserted a number of times over his early life.

5. At 23 years of age, WIB is a large young man, noted in the Positive Behaviour Support plan to stand at 170 cm and weigh 117 kg.

6. He is described as having significant instances of physical aggression over the years which are targeted to others. His mother LB explained that WIB calls these instances ‘burkos’. While he seems unable to control these instances when his aggression escalates into property damage and injury to people, he is usually very remorseful after the event, apologising that he has been unable to control his violent outburst. LB described these situations where everything and everyone nearby is the target of rage: seeing televisions broken, microwaves, toasters, kettles, plates, glasses, pushed away and up-ended, and windows punched through. Workers and family have identified high rates of physical damage to people who are present during his escalations. At these times he has been known on many occasions to escape in an escalated state onto the streets around his home. Concerns have been generated by the service providers about WIB’s own safety, safety of others, and have sought the use of restrictive practices to manage these extreme behaviours.

   Restrictive practices

7. Approval of proposed containment, together with approval for restricted access to objects and physical restraint, has been sought by The Department of Disability Services.  

8. The Tribunal must consider the containment application under sections 80V and

   
   

   80W of the Guardianship and Administration Act 2000 (Qld) (‘the Act’), and must be satisfied of matters outlined at section 80V(2)(a) – (g), and also give consideration to matters specified in s 80W(1). Application for Approval of Containment: Specific mandatory considerations are further set out section 80W of the Act. The relevant sections require the Tribunal to be satisfied that:

   (a)WIB has impaired capacity for decisions about the use of restrictive practices in relation to him;

   (b)there is a need to contain WIB because:

   (i)      his behaviour has previously resulted in harm to himself or others; and

   (ii)     there is a reasonable likelihood that if the approval is not given, his behaviour will cause harm to him or others; and

   (c)a Positive Behaviour Support Plan has been developed which provides for the containment;

   (d)containing WIB in compliance with the approval is the least restrictive way of ensuring safety of WIB and others;

   (e)WIB has been adequately assessed by appropriately qualified persons in the development of the Positive Behaviour Support Plan;

   (f)if the Positive Behaviour Support Plan BSP is implemented:

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

   (ii)     WIB’s quality of life will be improved in the long term; and

   (g)the observations and monitoring provided for under the PBSP for WIB are appropriate.

9. The matters which must be considered under s 80W are:

   (a)the suitability of the environment in which WIB will be contained or secluded;

   (b)the terms of the Forensic Order;

   (c)the views of the authorised psychiatrist about the containment or seclusion of WIB;

   (d)any strategies, including restrictive practices previously used to manage or reduce the behaviour of WIB that causes harm to him or others and the effectiveness of those strategies; and

   (e)the types of disability services provided to WIB.

10. The Tribunal may also approve the use of other restrictive practices under section 80X(1)(b) where it proposes to give approval under section 80V in relation to an adult. It must be satisfied of the aforementioned requirements in section 80V(2)(a)-(g) as they apply to the proposed restrictive practices.

    Does WIB have impaired capacity for decisions about the use of restrictive practice of his containment and other restrictive practices?

11. The Positive Behaviour Support Plan developed by Senior Clinician (Psychologist) Rowena Wooley suggests WIB has a number of conditions interacting which may impact upon his cognitive functioning, including hydrocephalus intellectual disability, epilepsy, and Bipolar 1 Disorder, with features of Attention Deficit Hyperactivity Disorder. She notes that WIB has deficits in his cognitive functioning across a number of domains. He has difficulty processing information, and has difficulty maintaining attention, losing his train of thought frequently.[2] He has impaired short and long term memory.  He demonstrates impulsivity and his decreased initiation, with difficulty completing tasks and requires frequent prompting.[3] WIB has some difficulties with communication, and the Positive Behaviour Support Plan suggests that he ‘appears to understand more than he actually does (with) difficulty understanding complex questions ideas and activities without support.’ It notes that unfamiliar people have difficulty understanding him, and that his speech can becoming less intelligible when he is tired.[4]

    [2]Ibid 10.

    [3]Ibid 11.

    [4]Ibid 7.

12. The Tribunal notes the oral evidence of LB and Rowena Wooley that WIB appears to understand at some level that his ‘burko’ behaviour is related to the issue of locking the door. It is noted that Ms Etheridge observed that he does not appear to be agitated by the act of locking the door, and appears to accept it, and that this observation was endorsed by other parties at the hearing.

13. The Tribunal had before it the Health Professional Report of Dr Gregory McMahon, WIB’s General Practitioner of 22 years. His report dated 29 September 2017, indicated that WIB had been diagnosed with hydrocephalous and epilepsy. He indicated WIB would be unable to understand the request for a medical report, or contribute to discussions about his capacity to make decisions arising from this. He noted that restrictive practices proposed included locking the door and putting sharp knives out of reach. He considered that WIB’s ability to understand and act on information and appreciate consequences of decisions about the use of restrictive practices to prevent harm to himself or others was ‘little to none.’

14. He considered that WIB was unable to make decisions freely and voluntarily. He noted further that he has impaired communication, ‘doesn’t take instructions’ and has ‘poor social interactions’. He did not consider that WIB could make simple decisions, around the use of restrictive practices.

15. The weight of the evidence indicates that as a result of his intellectual disability he does not appreciate the risk that he poses and potential for harm to himself or others related to the decision about locking the door to prevent his eloping and risk to the public in his heightened state and cannot make this freely and voluntarily. It suggests that he is unlikely to comprehend the issues around restricting access to objects which may cause danger to himself and others, or around issues of physical restraint to avoid injury.

16. Resultantly, the legal test for capacity outlined at Schedule 4 of the Act is not made out.

    Is there a need for the service provider to contain WIB because his behaviour has previously resulted in harm to himself or others, and there is a reasonable likelihood that, if the approval is not given, WIB’s behaviour will cause harm to himself or others?

17. The applicant submitted that there was a need to contain WIB in his home due to his physical aggression, property damage and propensity to leave or elope from his home into the community in an agitated state. Concerns exist that in a heightened state of physical aggression, he is likely to engage in physical or property damage if he is approached. It is noted that WIB is likely to leave the house in his underwear and has been found sitting on in the middle of the road, lacking any sense of road safety. Concerns are expressed for members of the community who may be at risk of his aggressive behaviour at these times.

18. WIB’s parents and those involved in his care indicated that this behaviour was present when he was living with his family before 2012. His physical aggression has included breaking windows furniture, televisions, iPads and kettles. He has pulled items from fridges and cupboards and upended them onto the floor. He has smashed a glass lightbulb, cutting himself. He has thrown knives and attacked workers’ cars. He has punched people, scratched, bitten, kicked, and used weapons such as hammers and knives against people. Injuries have been sustained by WIB ’s family, carers, teachers respite workers and peers as a result of his physical aggression, including broken noses, bruises, scratches and cuts to arms, black eyes, concussions, and lacerations requiring stitches.[5] Support staff have on occasion been hospitalised arising from injuries. LB indicates that his behaviour is indiscriminate, and affects family, workers, or whoever is present at the time.

    [5]Ibid 16.

19. WIB has experienced these violent outbursts for many years with the intensity and duration of the episodes fluctuating in the past four years.[6] Service provider recordings note an increase in these behaviours since February 2016,[7] with higher intensity in January 2017, and again in August to November 2017. Last year the episodes endured on average 73 minutes. Following modification of his medication for a diagnosed   Bipolar 1 Disorder, under the management of Dr Franklin, WIB is experiencing a particularly difficult period with his mental health. The most severe incident recorded (wherein he was unable to be re-engaged by support staff) occurred as recently as March of this year and required police intervention.[8]

    [6]         Ibid 21.

    [7]Ibid 21.

    [8]Ibid 23, 17.

20. WIB has demonstrated a longstanding presence of harmful behaviours including physical violence to people and property and eloping from supervised care into the community without support at times of agitation and aggression. The Tribunal concludes that it is reasonably likely that these will cause harm to himself and others if the proposed containment is not approved. WIB is exposed to the significant risks of being unsafe on the roads, and retaliation from community members who may be threatened by his aggressive behaviour.  He may also place himself at risk of legal consequences after harming a member of the public. Containment in these circumstances is for his own protection and that of the community.

    Is there a need for physical restraint and restricted access to objects?

21. Given that he has previously harmed people on multiple occasions, and there is a reasonable likelihood that, without approval for physical restraint to enable a support worker to disengage from his assault, injury may occur.

22. Significant injuries such as broken arms black eyes and concussions have been recorded in previous instances.[9] He has demonstrated no ability to control these behaviours during periods of escalation, due to his disability. It is also noted in that there are times when there is no obvious precursor behaviour,[10] giving an element of unpredictability to escalations at times. Evade and exit strategies have been most successful to avoid injury, however, there have been times when staff have not been able to do so and injury has occurred. There is therefore that reasonable likelihood that without approval for physical restraint (specifically disengagement from his grasp or attack), injury may be sustained.

    [9]Ibid.

23. Given his propensity to use objects as projectiles, and weapons, and to indiscriminately knock over items of crockery glassware and electrical goods there is a reasonable likelihood that without restricted access to these household items that harm may occur to himself, or others around including his co-tenant or support staff.

    Other mandatory considerations specified in section 80V of the Act

24. The Tribunal notes the PBSP developed by Rowena Wooley and signed off by the Authorised Departmental Delegate on 20 April 2018, provides for:

    (a)the containment of WIB in circumstances;

    (b)disengagement in face of attack; and

    (c)the removal of potentially dangerous objects from sight.

25. Locking the front door in terms proposed by the plan is considered to be the least restrictive alternative to manage his eloping. It proposes to do so only at times when WIB is agitated or unsupervised due to the worker’s attention on his co-tenant. This will limit his access to the community at times he is in an uncontrolled state of aggression, calm but undressed, or, without a support worker to assist him navigate safely. It will enable him to access the community at times he is calm and supervised.   He continues to have access to all of his space inside the house and yard.

26. Physical restraint is considered the least restrictive alternative. The practice of disengagement by deflecting WIB’s contact with workers will occur only in circumstances where they are unable to evade and exit to avoid injury.

27. Restricted access to sharp objects and household electrical goods is the least restrictive alternative where such objects have been used as either weapons or dangerous projectiles, placing WIB and others at risk of harm. It is noted that he has access to these objects upon request when calm. The unpredictable nature of his aggression suggests there is no less restrictive means of ensuring safety.

28. The Tribunal notes that the PBSP is informed by a multidisciplinary assessment of WIB’s needs. It purports to seek means to improve his quality of life, as well as methods to manage his behaviours to reduce harm to himself and others.[11] These have included:

    (a)Functional adaptive behaviour assessment by Senior Clinical (Psychologist) Rowena Wooley;

    (b)Sensory cognitive functioning and Function and Environment Assessments performed by Meredith Gardiner, Occupational Therapist; and

    (c)Speech and Language Assessment by Bryanna Hall, Cronin, Speech and Language Pathologist. Further interviews with Dr Cathy Franklin, WIB’s treating psychiatrist, were consulted. The PBSP identifies that all clinicians were aligned in their assessments

    [11]PBSP, 4; PBSP Addendum, 2.

29. The Tribunal notes that WIB’s mental health has deteriorated over the past two years, with an increase in the duration intensity and frequency of his behaviour, requiring more comprehensive assessment as things have changes. 

30. The Tribunal is satisfied that he has been adequately assessed in developing the PBSP. This plan outlines a number of proactive and reactive strategies that are to be used before any restrictive practices. These propose to manage WIB through reducing the scope for the consequential risks of his uncontrolled physical aggression. The risk of harm is reduced through the implementation of the plan through use of the range of strategies identified in the plan.

31. The PBSP indicates that observation and monitoring will occur through collaboration of the House With No Steps support team, and the Disability Services Clinical Services. Recording of WIB’s behaviour through daily implementation monitoring sheets and incident reports will be completed by support staff and review of these will monitor the use of restrictive practices. The Department proposes to review the effectiveness of the strategies outlined in the plan monthly. Should there be:

    (a)an increase in the behaviours leading to the use of containment;

    (b)any concerns with the restrictive practices being used;

    (c)a new practice identified; or

    (d)a request from the treating psychiatrist or stakeholders to request a review;

    the Plan will be reviewed.

    The Tribunal is satisfied that, given the level of daily observation and oversight by clinicians, these mechanisms are appropriate to ensure the plan remains responsive to his needs and quality of life. 

1. The Tribunal considers that, based on these considerations, the threshold requirements for the approval of containment and the use of other restrictive practices has been met.

   Whether the Tribunal should give approval for containment and the use of other restrictive practices

2. The Tribunal must consider factors outlined at section 80W(1), and may also consider those specified at section 80W(2), in determining whether to approve the proposed restrictive practices.

3. Having regard to these factors, the Tribunal notes that WIB receives in-home accommodation support and 16 hours of community access support. There is a sleepover shift seven days per week.[12] He is not subject to a forensic order.

   [12]PBSP Addendum 12 April 2018, 2.

4. He shares his home with a cotenant, who has a safe retreat space from WIB when in escalated state. The Plan provides for containment in WIB’s house where he has been living since 2013. While contained, he has access to all areas of his four-bedroom home during the period of containment. He has access via the sliding door to the backyard where he has an outdoor sitting area. He can access his toilet and bedroom. Minor modifications including the removal of a toilet wall to provide more space are in progress. Overall, the environment, which is his familiar living space where he has free access, is suitable for the proposed containment. Similarly, use of other restrictive practices in this home environment are appropriate.

5. Previously used strategies have included:

   (a)emergency response from family members;

   (b)physical restraint;

   (c)protective actions;

   (d)reduction in community access;

   (e)containment: locking the door and exits from the property, since 2012;

   (f)chemical restraint;

   (g)‘evade and exit’ in response to escalated behaviour; and

   (h)proactive strategies including emotional regulation, visual schedules, staff training and breathing strategies.

6. The plan notes that some of these strategies, such as denying community access and family crisis response, have been triggering events which have brought on the escalated behaviours and alternate strategies in this plan seek to address this.[13]

   [13]Ibid 1-2.

7. The strategies in the plan have been developed with the consultation and agreement of WIB’s parents and support service. It is noted that each of the clinicians are in sync with their assessments, and they appear to have worked collaboratively to understand WIB ’s needs and develop strategies to support these, with no difference of opinion.  It is noted that WIB, while he does not like the door being locked, acknowledges that it is locked to keep him and others safe during his ‘burkos’.

8. In terms of supporting and supervising staff in the implementation of the plan, there will be monthly meetings between the stakeholders. Quick reference strategies will be able to be accessed. Disability Services proposes to provide a training package to the service provider to ensure the plan is understood, and will collaborate with protocols around morning and afternoon routines and key phrases, providing detailed steps for staff to follow.[14]

   [14]Ibid 3.

9. Having regard to these considerations and the scope of positive, reactive and restrictive strategies specified in the PBSP of 20 April 2018, the Tribunal approves the application for containment in accordance with the arrangements specified therein. The Tribunal further approves the use of other restrictive practices, being physical restraint (disengagement) and restricted access to sharp objects and other items that may cause harm such as the microwave, toaster and kettle.

Review of the appointment of a guardian for restrictive practices

1. The Tribunal has reviewed the Appointment of a Guardian for Restrictive Practices pursuant to section 31(2). This requires the Tribunal to consider if it would make a new appointment for a Guardian for Restrictive Practices if a fresh application were to be made under section 80ZD.

2. In order for the Tribunal to grant an application under section 80ZD(1)(c), there must be a need for a decision about a restrictive practice, in addition to other considerations laid out in that section. The Tribunal is required to revoke an appointment pursuant to section 31(2) where there it would not grant a fresh application.

3. The Tribunal finds that there is no need for a decision to be made, given the approval granted by the Tribunal under section 80X in accordance with the statutory scheme, and revokes the appointment of a Guardian for Restrictive Practice.

Review of the appointment of guardian and administrator

1. The Tribunal has also considered whether there is continuing need for a Guardian and Administrator pursuant to section 31 of the Act.

2. The Tribunal notes that the evidence referred to in paragraphs [11]-[16] of this decision indicates that WIB is unable to understand the nature and consequences of decisions about his personal and financial matters given the extent of his intellectual disability and its impact on his cognition. Further, the Health Professional Report of Dr McMahon, previously referred to, notes WIB has no ability to understand financial matters and little to no ability to understand lifestyle and accommodation matters, and is not able to make simple decisions in these domains. The evidence indicates that he has impaired decision making ability in respect of these matters.

3. LB and DB indicate that they continue to be actively involved in their son’s day-to-day life, living nearby and at times involved in managing his escalated behaviour when he is in care. The Tribunal considers, in light of the instability of his mental health, and the nature of the restrictive practices involved in his care and management, the complexity of his challenging behaviours, and the recent instability in his condition, there continues to be a need for help and representations in relation to these practices, and LB and DB are appropriate to make these representations, given their close and active relationship with their son.

4. The Tribunal notes that the behaviours sometimes place pressure on the co-tenancy accommodation arrangement and there may be some consequential fragility there. Therefore, there also continues to be a need for accommodation and service decisions, including the National Disability Insurance Scheme. The Tribunal considers that, without an appointment for these matters, his interests would not be adequately protected. The Tribunal continues the Guardianship appointment for these matters.

5. Similarly, WIB continues to have income and expenses to be managed around his day-to-day living. He therefore continues to have a need for financial decisions to be made and, without an appointment, his interests will not be adequately protected. The evidence suggests that LB and DB have been managing WIB’s finances appropriately and competently, and accordingly the administration appointment is continued for all financial matters.

6. The Tribunal makes orders accordingly.