WRM
[2011] QCAT 109
•24 February 2011
| CITATION: | WRM [2011] QCAT 109 |
| PARTIES: | WRM |
| APPLICATION NUMBER: | GAA287-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | E Morriss, Member |
| DELIVERED ON: | 24 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | WCMH is appointed as guardian for restrictive practices general for WRM for six months. |
| CATCHWORDS: | Guardianship – restrictive practices – mechanical restraint – self-injurious behaviour |
REASONS FOR DECISION
On 10 February 2010 the Queensland Civil and Administration Tribunal appointed WCMH as guardian for restrictive practices for WRM.
The appointment was reviewed on 10 February 2011 on the basis of information on the Tribunal file.
WRM is a fifty year old woman who lives with support from Centacare Disability Services. She is social woman, who enjoys shopping, going for walks, and eating out with family. She lived with her family until the age of 32 and now lives in shared accommodation with 24 hour support. WRM has developmental delay and intellectual disability. She has also been diagnosed with epilepsy, cerebral palsy, visual impairments, and reduced bone density and scoliosis.
When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.
The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
CAPACITY
The first matter to be considered by the Tribunal is whether WRM has capacity for decision-making about her matters. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether the adult has decision-making capacity or not.
In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions.
The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of:
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
The Tribunal considered the following evidence about capacity:
A Health Professional Report was available from Dr Margaret Trevena dated 2 January 2011. The report indicates diagnoses of Microcephaly, Lennox Gastaut Epilepsy. In regard to decision making WRM has no ability to understand, and cannot make simple or complex decisions in personal matters, including the use of restrictive practices.
A Report from Dr Robyn Wallace (QCIDD) dated 7 February 2000 documents a diagnosis of intellectual disability, epilepsy, and behavioural problems - multifactorial. She has no expressive speech, but communicates by vocalising and body language and can understand some simple things. She has had a supportive family, and stable living arrangements. She has a history of seizures from early childhood. Behaviour problems may be due to multiple issues including constipation, drugs, fits, alcohol, pain or her intellectual disability.
The Tribunal made findings of fact about capacity as follows:
·WRM has a severe intellectual disability and developmental delays since birth.
·WRM has limited ability to understand and communicate due to her disability.
·WRM has a history of seizures and requires high levels of support in the community to live independently. She has also relied on others for assistance with both simple and complex decision-making in all areas of her life.
·WRM does not have the capacity to understand or make decisions about the use of restrictive practices.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN?
The Tribunal can appoint a guardian for a restrictive practice matter under section 80ZD of the Guardianship and Administration Act 2000. It must however be satisfied:
(a)the adult has impaired capacity for the matter; and
(b)the adult’s behaviour has previously resulted in harm to the adult or others; and
(c)there is a need for a decision about the matter; and
(d)without the appointment
(i) the adult’s behaviour is likely to cause harm to the adult or others; and
(ii) the adult’s interests will not be adequately protected.
The Tribunal accepts the medical evidence that WRM has an intellectual disability and communication impairments and that she cannot make simple or complex decisions about the use of restrictive practices.
A Positive Behaviour Support Plan dated 14 January 2011 was provided to the Tribunal by Centacare Disability Services. This plan indicated that WRM has a history of self-harming behaviours, and described the use of restrictive practices to manage this behaviour, specifically the use of Xanax (chemical restraint) and the use of a tennis band to prevent sucking and/or biting of her wrist (mechanical restraint).
Subsequently the Tribunal received a letter dated 1 February 2011 from Centacare. This letter indicated that although the “tennis band is used primarily to prevent injury to WRM as a result of her sucking and/or biting her wrist ... this device (tennis band) does not control WRM’s behaviour and/or cease her engaging in the act of sucking and/or biting her wrist. WRM is freely able to move her wrist and participate in all activities, the tennis band simply acts as a “buffer” to stop WRM from harming her wrist”.
In regards the use of Xanax, this letter indicated that WRM attended an appointment with Dr Lander on 28 January 2011 and that she has stated to Centacare that in her medical opinion, Xanax was used as a PRN to treat WRM’s medical condition of Lennox Gastaut Epilepsy and Cyclothymia. Centacare indicate that they consider that WRM is no longer considered to be subject to restrictive practices and request the appointment of a guardian be “discontinued”.
WRM has a well documented history of self-injurious behaviours. Behaviours of concern include self-injuring by hitting herself on the forehead hard with a closed fist and defined as beginning when she extends her arm 30 centimetres from her head and makes contact with her forehead with a closed fist. She also sucks and/or bites her left wrist, defined as beginning when her mouth makes physical contact with her left wrist. The behaviour is finished when her mouth is no longer in contact with her wrist for a period of two minutes. At times the sucking and/or biting behaviour has caused the skin on her wrist to become very red and at times the skin has broken, and there has been bleeding. As a direct result of engaging in this behaviour over many years, the skin on her wrist has become hardened. A Positive Behaviour Support Plan was completed by Centacare and data collected indicates 11 incidences of self-injurious behaviour within a three month period. Some behaviour incidences last from 2 minutes to half an hour.
The Tribunal also accepts that WRM’s behaviour has previously caused harm to herself. The definition of “harm” in the Disability Services Act 2006 section 123E means:
(a)physical harm to the person; or
(b)a serious risk of physical harm to the person; or
(c)damage to property involving a serious risk of physical harm to the person.
The behaviours have been managed by family and carers by using a range of strategies, including diversion, trying to physically stop her or giving her a task or ignoring the behaviours, talking with her, offering a tissue, taking her for a short walk. The most successful strategies are offering her a tissue or taking her for a walk, but these strategies are not always successful.
The Tribunal must satisfy itself that there is the need for decisions to be made about restrictive practices. The initial Positive Behaviour Support Plan described the use of chemical restraint and mechanical restraint to manage WRM’s behaviour.
In respect of chemical restraint, Xanax was previously considered for the primary purpose of managing severely agitated behaviour. Dr Cecile Lander indicated on the form “Clarification of Purpose of Medication” on 25 January 2011, that Xanax was for the primary purpose of controlling the person’s behaviour, with directions to use rarely and only when severely agitated or “high”. In a letter to Dr Travena dated 28 January 2011, Dr Lander lists WRM’s diagnoses as Lennox Gastaut Syndrome associated with severe mental incapacity, reduced bone density, cyclothymia, and intermittent self-harming behaviour. She describes the use of Xanax to try and control cyclothymic behaviour and reduction of seizures. Dr Cecile Lander’s letter of 8 February 2011 also describes the intermittent Xanax to control episodes of epilepsy, but also for “behavioural problems – multifactorial”. Dr Lander discusses whether the Xanax is for behavioural disturbance or potentially epileptiform activity, and that it is really not possible to distinguish.
The Tribunal must consider whether the continuing, although infrequent use of Xanax is for the primary purpose of controlling the adult’s behaviour, or for the proper treatment of a diagnosed mental illness or physical condition. The most recent opinion of Dr Lander appears to be that the medication is for both. In a “Clarification of Purpose of Medication” dated 28 January 2011, she specifies that Xanax is “for agitation and increasing cyclothymia (mood changes) that may herald epileptiform activity”.
Under section 123F of the Disability Services Act 2006 only medication for the “primary purpose of controlling the adult’s behaviour” would be considered chemical restraint. Medication for the proper treatment of an appropriately diagnosed mental illness or physical illness would not be considered chemical restraint.
The other restrictive practice described in the Positive Behaviour Support Plan is mechanical restraint, consisting of a tennis band used on the adult’s wrist when she is sucking and/or biting her wrist. This behaviour has previously caused harm such as reddening, broken skin, and bleeding, and the skin on the wrist is permanently hardened as a result.
The “Protocol for The Use of a Tennis Band to Protect WRM’s Skin” provided by Centacare indicates that a tennis band is to be used in response to circumstances where WRM engages in a particular “behaviour” which is sucking and/or biting her wrist and where she does not respond to staff using verbal prompting and redirection to bring about the cessation of these actions. If she has calmed down and is no longer engaging in sucking and/or biting her wrist, the tennis band is to be removed.
The definition of mechanical restraint contained in the Disability Services Act 2006, in section 123H is as follows:
“Mechanical restraint of an adult with an intellectual or cognitive disability means the use for the primary purpose of controlling the adult’s behaviour with a device to:
(a)Restrict the free movement of the adult; or
(b)Prevent or reduce self-injurious behaviour.”
The Tribunal will focus on the definition of mechanical restraint and whether the tennis band is a mechanical restraint. It must firstly ask “is the primary purpose of the tennis band to control the adult’s behaviour”? The Tribunal is satisfied on the evidence before it that the “primary purpose” of the tennis band is to control WRM’s behaviour. Devices used for other primary purposes, for example, for safe transportation of adults, postural support, prevention of injury from involuntary movements, surgical or medical devices, or bed rails/guards, would not be considered mechanical restraint under section 123H.
Neither the Guardianship and Administration Act 2000 or the Disability Services Act 2006 provides a definition of the word “control”. However, the Oxford Dictionary provides a number of definitions of “control” including describing it as “the power to influence or direct people's behaviour or the course of events”. It also can be explained as “a means of limiting or regulating something”.
The Tribunal is satisfied that the use and primary purpose of the device of the tennis band is to control, regulate and influence WRM’s behaviour. It has been implemented for the primary and specific purpose of managing the behaviour when other techniques are not effective.
In the decision of GLJ, Re [2010] QCAT 436 the Tribunal found that the use of a helmet did not control the adult’s behaviour, although it was used to prevent injury as the result of head banging. In that matter, the Tribunal appears to have taken the view that the primary purpose of the device was to prevent injury rather than to control behaviour. It is not clear from the Tribunal’s decision in that matter how one might prevent injury without controlling the person’s behaviour in some way.
However, in respect of WRM, the device does control her behaviour – when it is placed on her wrist, she is not able to behave in the way that she might without the use of the device – she is unable to use her mouth to suck and/or bite directly on her wrist. She can suck and/or bite the tennis band, but she cannot reach her own body. She is unable to suck and/or bite her wrist causing redness, skin breakage, bleeding or skin hardening. The tennis band does not restrict all of the free movements of WRM (she can engage in other activities or other movements, including moving her wrist and body), however, it does control her ability to engage in a particular or specific free movement or behaviour.
The Tribunal considers that the purpose of the use of the device in the matter of WRM is also for the purpose of preventing or reducing self-injurious behaviour, specifically the sucking and/or biting of her wrist, which causes redness, skin breakage, bleeding and skin hardening.
The Tribunal is therefore satisfied that in these circumstances the use of the device, the tennis band, is consistent with the definition of mechanical restraint and is a restrictive practice. There is a well documented history of self-injurious behaviour, and should this device not be able to be used, then it is likely that the WRM would cause harm to herself and her interests and needs would not be adequately protected. Although other positive and preventative techniques are used by the service provider, these techniques are not always successful. The service provider will require the consent of an appointed guardian to use mechanical restraint. A guardian therefore should be appointed to make decisions about restrictive practices.
SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current guardian. The Tribunal previously appointed a family member, WCMH as a guardian for restrictive practices. Family members have been closely involved in the WRM’s life and decision-making, including making decisions about restrictive practices.
The current guardian has demonstrated a satisfactory understanding of the adult’s circumstances and needs, including the need to manage ongoing behavioural difficulties. The Tribunal is satisfied that she has been a competent and appropriate guardian for restrictive practices and that she should be appointed for a further six month period.
APPOINTMENT
WCMH is appointed as guardian for restrictive practices general for WRM for six months.
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