QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	PP [2021] QCAT 296	
PARTIES:	In applications about matters concerning PP	
APPLICATION NO/S:	GAA2643-21
GAA2644-21	
MATTER TYPE:	Guardianship and administration matters for adults	
DELIVERED ON:	20 July 2021	
HEARING DATE:	22 June 2021	
HEARD AT:	Ipswich	
DECISION OF:	Member Goodman
Member Lobban	
ORDERS:	GUARDIANSHIP - RESTRICTIVE PRACTICES
1.	The Public Guardian is appointed as guardian for restrictive practices (general) for PP.
2.	The guardian for restrictive practices (general) is to provide a copy of any updated Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the appointment.
3.	Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.
ADMINISTRATION
4.	The appointment of The Public Trustee of Queensland as administrator for PP for all financial matters is continued.
5.	The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
6.	The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
7.	This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.	
CATCHWORDS: 	HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - GENERAL PRINCIPLES - where presumption of capacity rebutted - where an appointment of a guardian for restrictive practices is sought - whether the use of specialised protective gloves is a mechanical restraint and so a restrictive practice

Disability Services Act 2006 (Qld) s 144, s 147 (1)
Guardianship and Administration Act 2000 (Qld) s 7, s 11, s 80ZD, Schedule 1
Human Rights Act 2019 (Qld) s 13, s 48	
APPEARANCES & REPRESENTATION:		
Adult:	PP did not attend the hearing	
Applicant/s:	Ms Ison, team leader, AS&RS	
Public Guardian:	Ms Anderson	
Others present:	PP’s sister WE
Ms Kitas, a senior clinician from the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships 
Mr Booker, of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships	
		
REASONS FOR DECISION
[1]	These matters initially came on for hearing in Ipswich on 31 May 2021. On that date, the review of the appointment of an administrator was heard and determined, and oral reasons were delivered. The hearing of the application for the appointment of a guardian for restrictive practices was determined following a further hearing on 22 June 2021, and these are the reasons for the Tribunal’s decision of 22 June 2021. 
[2]	The application relates to PP, a 47 year old gentleman living in supported accommodation. The applicant sought the appointment of the Public Guardian as PP’s guardian for restrictive practices. 
[3]	The Tribunal was satisfied that the notice requirements contained in the legislation had been met, and proceeded to consider this matter. While PP was provided with notice of the hearing, he did not attend. 
[4]	There was no guardian for restrictive practices appointed at the date of the hearing. The Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships had, however, issued two short term approvals for the use of a restrictive practice (mechanical restraint). The approvals related to the use of “specialized waterproof gloves worn at all times except when bathing”. 
[5]	Before making an appointment of a guardian for restrictive practices, the Tribunal must be satisfied that:
(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
Without the appointment:
(d)	the adult’s behaviour is likely to cause harm to the adult or others; and 
(e)	the adult’s interests will not be adequately protected. 
[6]	The Tribunal first considered whether PP has capacity for making decisions about the use of restrictive practices. Extensive medical evidence before us consistently supported a finding that PP has a severe intellectual disability secondary to intra-cranial malformation, a history of epilepsy, asthma, anxiety and depression with communication impairment, and poor cognitive capacity and adaptive behaviour. He has had an intellectual disability since birth, and has been in external care since he was 10 years old. We are satisfied that the presumption of capacity is rebutted, and that PP lacks capacity to make decisions about the use of restrictive practices. 
[7]	A draft Positive Behaviour Support Plan (PBSP) was provided to the Tribunal on the first day of hearing, and the final version of that document was provided on the second day of hearing, and was the subject of further oral evidence. The author is Ms Kitas, who received a Bachelor of Behavioural Studies in 2007, and is a senior clinician with the Department. The PBSP provides for the use of gloves to prevent injury to PP, and the applicant seeks the appointment of a guardian for restrictive practices to approve what she regards as a restrictive practice. 
[8]	The particular behaviour which the gloves are said to be used in response to is described in the PBSP as “Self Injury”, which is said to occur when PP “attempts to, or actually harms himself by biting his fingers.” 
[9]	The oral evidence was that:
(a)	PP places his fingers in his mouth “constantly”. This behaviour is thought to meet a sensory need, and is not described as causing self injury;
(b)	Approximately three to four times per hour, PP drags one to three of his fingers across his teeth and flicks them out of the side of his mouth. This behaviour was described as the “biting” referred to in the PBSP. Ms Kitas hypothesised that the biting down and dragging against his teeth is an expression of frustration or anxiety. If unchecked, the biting results in PP’s skin being torn, and in him removing chunks of skin. 
(c)	PP is motivated to bite down into his skin (as opposed, for example, to biting down to feel pressure on his fingers, which he is able to do with the gloves on). Ms Kitas hypothesised that PP’s behaviour is best described as “biting on his skin”, and that the gloves “prevent him from completing that behaviour”. 

[10]	In addition to the tearing of the skin, PP had suffered injury from significant ongoing infections on his fingers prior to the use of the gloves. 
[11]	The PBSP provides for PP to wear waterproof Seal Skinz gloves, which are removed only for meal times and washing, with a regime of regular inspection of PP’s hands and appropriate hygiene. PP is unable to remove the gloves himself. In contrast to other options, the gloves are said to allow the most flexibility and function without restricting individual finger movement. There is no evidence to suggest that PP finds the use of gloves to be unpleasant or restrictive of his daily life.
[12]	The tribunal must determine whether the use of these gloves is a mechanical restraint, and so a “restrictive practice”.  
[13]	Mechanical restraint of an adult with cognitive disability is defined as “the use, for the primary purpose of controlling the adult’s behaviour, of a device in response to the adult’s behaviour that causes harm to the adult or others to –
(a)	Restrict the free movement of the adult; or 
(b)	Prevent or reduce self-injurious behaviour.”
[14]	The Tribunal was particularly concerned to identify the specific relevant “behaviour”. As noted above, Ms Kitas, the PBSP author, indicated that when he is frustrated or anxious, PP bites into the skin of his hands with sufficient force and pressure to break the skin, causing immediate and obvious harm at the time, and subsequently allowing infection to occur and be spread, and that without the gloves PP “would take chunks of flesh out of his hands”. 
[15]	On the available evidence, the Tribunal finds that PP is motivated to bite into the skin of his hands, and that his “behaviour” is biting into the skin of his hands. We find that  the gloves prevent PP biting into his skin, and are used for the primary purpose of  controlling his behaviour. We find further that the gloves prevent PP’s self-injurious behaviour. 
[16]	We were satisfied that the use of the gloves constitutes a mechanical restraint. These findings are based on the oral evidence presented, and in particular based on the hypothesis of the author of the PBSP. That is the best evidence currently available to the Tribunal. It is acknowledged that this current hypothesis may change in the future. In the event that circumstances change, or new evidence becomes available, the Tribunal may reconsider these findings. 
[17]	We were therefore satisfied that:
(a)	the use of the gloves constitutes a mechanical restraint,
(b)	PP has impaired capacity for making decisions about the use of restrictive practices, 
(c)	PP’s behaviour has previously resulted in harm to himself, 
(d)	there is a need for a decision about the use of restrictive practices, and 
(e)	without an appointment PP’s behaviour is likely to cause harm to himself, and his interests will not be adequately protected. 
[18]	We were satisfied that there was a need to appoint a guardian for restrictive practices. The Public Guardian, the proposed appointee, is a competent and appropriate guardian for restrictive practices, and the Tribunal appointed the Public Guardian for two years. 
[19]	The Tribunal considered the relevant human rights set out in the Human Rights Act 2019 (Qld) (the Human Rights Act). As required by s 48 of the Human Rights Act, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. PP's rights to freedom of movement and protection from being subject to medical treatment without his full, free and informed consent are engaged and limited by this decision. Taking into account the findings above, the Tribunal is satisfied that the limits imposed by this decision are reasonable and justified in accordance with s13 of the Human Rights Act.