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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
PST  QCAT 212
In an application about matters concerning PST
Guardianship and administration matters for adults
29 May 2020
29 May 2020
The appointment of KO as guardian for restrictive practices for PST is revoked.
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where adult demonstrates harmful behaviour causing damage to property and himself – where consent is not required for locked gates and doors which keep the adult safe from traffic – where restricted access to objects does not necessitate formal appointment of guardian for restrictive practices (general) – where restricted access to objects requires consent from informal decision-maker
Disability Services Act 2006 (Qld) s 166(3)
Guardianship and Administration Act 2000 (Qld) s 80ZD
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- On 8 June 2018 KO was appointed as the guardian for restrictive practices (general) for PST. The appointment was to be in place for two years. PST and KO were informed that the appointment would be reviewed before 8 June 2020. The hearing of the review of the appointment took place on the papers without an oral hearing on 29 May 2020.
- PST has an intellectual impairment and lives in accommodation where he is supported by paid service providers. He is also supported by service providers while having access to the community. PST demonstrates harmful behaviour while at home when he damages items or structures within his home and as a result, he has caused harm to himself. PST has attempted to step out into the path of oncoming traffic when in the community. PST demonstrates no awareness of the risks involved in this behaviour and has been assessed as having inadequate road safety skills and awareness.
- A Positive Behaviour Support Plan has been developed by his service providers and identifies the use of restrictive practices used against PST: namely locking external doors and gates to prevent PST from having free access outside his home and covering the television screen with hardened plastic to prevent PST from breaking the screen.
- The first mentioned restrictive practice is used to keep PST safe from traffic due to his lack of road safety skills. As such, that particular practice does not fall within the category of restrictive practices for which consent is required from a guardian for restrictive practices under the Disability Services Act 2006 (Qld).
- The second restrictive practice mentioned in the Positive Behaviour Support Plan is restricting the access of PST to an object in his home. Under the Disability Services Act 2006 (Qld), consent is required from a decision-maker for that restrictive practice.
- Section 166(3) of the Disability Services Act 2006 (Qld) provides that a relevant decision-maker for restricting access of an adult to objects can be an informal decision-maker if there is no appointed guardian for restrictive practices (general). In other words, when the only restrictive practice being used that requires consent of a decision-maker is restricting access of a person to objects, then no formal appointment of a guardian for restrictive practices (general) is needed.
- The Tribunal can only appoint a guardian for restrictive practices if, under s 80ZD of the Guardianship and Administration Act 2000 (Qld), a decision about consent is needed from a guardian for restrictive practices. Under the Positive Behaviour Support Plan filed in the Tribunal, the only use of restrictive practices that requires consent under the relevant legislation is restricting the access of PST to his television screen. That consent can be given by KO as an informal decision-maker for PST and she does not need to be an appointed guardian for restrictive practices for that consent to be validly given.
- The Tribunal should not make appointments when they are not necessary according to law. KO should continue to provide consent, if she considers that appropriate, to the use of the sole restrictive practice of restricting the access of PST to objects within his home. That consent must still be provided in accordance with a Positive Behaviour Support Plan and in accordance with the law.
- As the Tribunal cannot be satisfied under s 80ZD of the Guardianship and Administration Act 2000 (Qld) that a guardian for restrictive practices (general) is needed, the appointment of KO is revoked. KO must still be the person who is looked to by the service providers to give consent but as an informal decision-maker in accordance with s 166(3) of the Disability Services Act 2006 (Qld).
- Published Case Name:
- Shortened Case Name:
 QCAT 212
29 May 2020