ZC (Restrictive Intervention)
[2019] TASGAB 35
•25 November 2019
CITATION: | ZC (Restrictive Intervention) [2019] TASGAB 35 |
HEARING DATE(S): | 25 November 2019 |
DATE OF ORDERS: | 25 November 2019 |
DATE OF STATEMENT OF REASONS: | 4 December 2019 |
BOARD: | Ms R Holder (President) Dr K McShane (Member) Mr J Walker (Member) |
APPLICATION | Application for Approval of a Restrictive Intervention |
CATCHWORDS: | Restrictive Intervention, personal restriction, environmental restriction |
LEGISLATION CITED: | Disability Services Act 2011 (Tas), ss 4, 34, 42, 43 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Application
The Applicant, Nexus Inc, a disability service provider within the meaning of the Disability Services Act 2011, (‘the Act’) made an application with respect to ZC to the Guardianship and Administration Board (‘the Board’) for approval of restrictive interventions comprising the locking of the front door of ZC’s residence and the locking of a kitchen food cupboard and refrigerator at ZC’s residence and at the Nexus Inc Day Centre where ZC attends.
Hearing
The Board heard and determined the Application on 25 November 2019.
In attendance at the hearing were:
a.Ms Alison Hodges, the Applicant;
b.Mr Mark Jessup, CEO of Nexus Inc;
c.Ms Tammy Beaumont, Quality Adviser at Nexus Inc;
d.Mr Charley Hodgson, Senior Practitioner under the Act; and
e.Ms Shayne Lynch, Practice Consultant, Disability Services
The Board had before it the following documents:
a.Application for Approval of a Restrictive Intervention dated 26 September 2019;
b.Healthcare Professional Report (‘HCPR’) by Dr Luke Craig dated 19 September 2019;
c.Guardianship Order made by the Board on the 2 August 2018;
d.Statement from the Senior Practitioner 11 October 2019;
e.Nexus Inc Client Report dated 12 April 2018; and
f.Nexus Inc Incident Reports and related documentation.
Background
ZC is a 66 year old man residing in a group home with accommodation support provided by Nexus Inc. He is a long term resident of the home, and was formerly a resident at Willow Court until 1994. ZC attends a day service, five days a week, run by Nexus Inc.
Since 28 May 2018, the Board has made and renewed a Guardianship Order appointing the Public Guardian with the power to make decisions limited to healthcare and medical treatment; and advocating and/or making decisions in respect of National Disability Insurance Scheme (‘NDIS’) plan development, plan implementation and or plan review.
The Board has produced this Statement of Reasons of its own motion, rather than at the request of a party to the proceedings.
Legislation
Part 6 Division 3 of the Act provides for regulation of restrictive interventions by the Board.
Section 4 of the Act defines a restrictive intervention as meaning
... any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person but does not include such an action that is –
(a) taken for therapeutic purposes; or
(b) taken to enable the safe transportation of the person; or
(c) authorised under any enactment relating to the provision of mental health services or to guardianship.
Section 34 of the Act defines two types of restrictive interventions:
environmental restriction, in relation to a person with disability, means a restrictive intervention in relation to the person that consists of the modification of an object, or the environment of the person, so as to enable the behavioural control of the person but does not include a personal restriction;
personal restriction, in relation to a person with disability, means a restrictive intervention in relation to the person that consists wholly or partially of –
(a) physical contact with the person so as to enable the behavioural control of the person; or
(b) the taking of an action that restricts the liberty of movement of the person.
The power of the Board to make orders in respect of restrictive interventions is set out in section 42 of the Act. Section 43 sets out what the Board must be satisfied of to proceed to approving a restrictive intervention, namely:
(1) An approval for the carrying out of a type of restrictive intervention in relation to a person with disability may only be granted by the Guardianship and Administration Board under section 42 if the Board is satisfied that –
(a) the type of restrictive intervention will be carried out only for the primary purpose of ensuring the safety, health or wellbeing of the person or other persons; and
(b) the restrictive intervention is the type of restrictive intervention that is the least restrictive of the person's freedom of decision and action as is practicable in the circumstances.
(2) In determining whether to grant an approval under section 42 for the carrying out by a disability services provider or funded private person of a type of restrictive intervention in relation to a person with disability, the Guardianship and Administration Board must have regard to –
(a) the best interests of the person with disability; and
(b) the consequences to the person with disability if restrictive intervention of that type is carried out in relation to the person; and
(c) the consequences to the person with disability, or other persons, if restrictive intervention of that type is not carried out in relation to the person with disability; and
(d) any alternative method reasonably suitable and able to be used in relation to the person with disability to control the behaviour for which the type of restrictive intervention has been proposed; and
(e) the nature and degree of any significant risks to the person with disability if the restrictive intervention is carried out; and
(f) whether, and the extent to which, carrying out the restrictive intervention will promote or reduce the safety, health and wellbeing of the person with disability.
The Application states in respect of the restrictive practices sought “…the new Commission considers that they cannot be ‘un-authorised’ and hence this application.” Reference to the Commission is understood to be a reference to the NDIS Quality and Safeguarding Commission (‘NDIS Commission’), which is an independent Commonwealth agency established to improve the quality and safety of NDIS supports and services.
Since 1 July 2019 the NDIS Commission commenced operation in Tasmania. Since that time registered NDIS providers in Tasmania and behavioural support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (‘the Rules’), which commenced on 1 July 2018.
Part 2 of the Rules sets out the conditions of registration that apply to all registered NDIS providers who use restrictive practices in the course of delivering NDIS supports. These conditions include requiring the use of restrictive practices to:
·not occur where the relevant State and Territory prohibits such use;
·be undertaken in accordance with State and Territory authorisation processes and a behaviour support plan; and
·be recorded by the provider and reported to the Commissioner.
Rule 9 relates to the use of a regulated restrictive practice in a State or Territory ‘…with an authorisation process (however described)’ by a registered NDIS provider in that State. The notes to rule 9 of the Rules state:
An authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer.
The Board’s jurisdiction to determine whether it will approve a restrictive intervention comes from the Act, as set out above, and not from the Commonwealth NDIS Act or Rules.
Evidence and Findings
The Board has a HCPR from Dr Luke Craig dated 19 September 2019 which reports that ZC has lifelong intellectual disability and a diagnosis of autism spectrum disorder. ZC is nonverbal and has limited nonverbal cues in which to communicate. He is dependent on his carers for all activities of daily living. The HCPR reports that by reason of his disability, ZC experiences deficits in relation to expressive and receptive communication, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills. Further, ZC has a medical condition, cardiomyopathy which has required the insertion of a pace maker and results in regular reviews with a cardiologist. The Board finds that ZC is a person with a disability and is incapable due to his disability of giving consent to any restrictive intervention that impacts on his rights or freedom of movement.
The Application states that the front door of ZC’s home is locked at all times and he is unable to access the community independently. The Application indicates ZC has a history of absconding which has resulted in him entering neighbour’s homes and helping himself to the contents of their fridges and pantry. It is stated that ZC has little safety awareness, including road safety and no sense of direction resulting in being unable to return to his residence and becoming lost. The Applicant gave evidence at hearing that there is no front fence at ZC’s residence, which borders on to a street. The Applicant stated if the door was left unlocked there was little doubt ZC would leave the property and put himself at risk of harm.
The Board heard Nexus Inc have developed protocols to allow ZC access to the community. If ZC wants to go out which is demonstrated by him standing at the door, then staff will go with him. If staff are unable to go immediately with ZC, this is explained to him and staff accompany him as soon as they can.
The Senior Practitioner in his Statement dated 11 September 2019 stated:
On the face of it a locked front door by its very nature limits a person’s movement if, as in ZC’s case, he isn’t able to have or use a key. However because Nexus staff have developed a protocol that maintains his right to access the community when he wants to go out it could be argued that ZC’s liberty of movement is not being restricted. Moreover ZC does not have the skills to independently access the community safetly and Nexus staff would not be discharging the duty of care they owe to him if they let him leave on his own. “
It was accepted by all those at the hearing including the Senior Practitioner that ZC’s movements were restricted by the locking of the front door of his home as it stops him leaving the house. The Board acknowledges the protocols in place by Nexus Inc which ensures ZC can leave the house with staff supervision, but the reality is ZC cannot leave immediately when he wants to and cannot leave without staff. The Board is satisfied that this practice constitutes a ‘restrictive intervention’ as it is a personal restriction of ZC’s liberty of movement and is being used to control his behaviours. The Board is satisfied that the approval and use of this restrictive practice is in the best interests of ZC to ensure he is not at risk of harm, including being hit by a motor vehicle, getting lost and found unlawfully interfering with other people’s property.
The Application also references that the refrigerator and food cupboard in ZC’s residence are locked. The Board heard ZC has access to a set amount of food which is left where he can access it or placed in a small refrigerator which is not locked. The Applicant stated ZC grabs food and eats it quickly, often causing a choking risk. The Applicant indicated ZC particularly likes to eat bread and biscuits and would eat these food items until they are all gone. As a consequence of his heart condition, the Applicant contends it is important ZC follows a balanced and healthy diet, in accordance with dietary advice.
The Board heard evidence that ZC is restricted in his access to food, as his natural disposition leads to overeating and an inability to self-regulate the frequency and volume of food he consumes. While there is food available each day for ZC to access and eat, if left to make his own decisions, ZC would not regulate his food intake, the way Nexus Inc staff regulate it for him.
The control by locking a food cupboard and refrigerator, of what is available for ZC to eat and the quantity of food he can eat, is a form of restrictive practice. It is a practice that restricts ZC’s right to freely access his environment. The Board is satisfied this practice is an ‘environmental restriction’ to control ZC’s behaviours. The Board accepts the use of this restricitive intervention is in ZC’s best interests to ensure he maintains a healthy weight and appropriate diet which is appropriate for someone with a heart condition
The Board is satisfied the use of the restrictive interventions being sought will be carried out only for the primary purpose of ensuring the safety, health or wellbeing of ZC and at this point in time is the least restrictive of ZC’s freedom of decision and action.
THE BOARD APPROVES:
A Personal Restrictive Intervention to allow staff of Nexus Inc to lock the front door of ZC’s residence; and
An Environmental Restrictive Intervention to allow staff of Nexus Inc to lock the refrigerator and food cupboard at ZC’s residence and at the Nexus Inc Day Service site.
Conditions:
The restrictive practices permitted are for the primary purpose of ensuring the safety, health or wellbeing of ZC or other persons and should only occur in accordance with a Behaviour Support Plan (BSP) which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon ZC and after obtaining input from any relevant allied health professionals. The BSP should be reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
THIS APPROVAL is valid until the 24th day of November 2020
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