AUSTRALASIAN COLLEGE OF LEGAL MEDICINEANNUAL SCIENTIFIC MEETING

CUSTODIAL AND REFUGEE HEALTH

Salient Lessons and Implications from the VCATDisability Act cases on the Use/Misuse of Seclusion,Chemical and Mechanical Restraints on CivillyDetained persons.

Dr Maria Dudycz(MB BS[Hons], LL.B[Hons], FACLM)

OVERVIEW

Origins of the Disability Act 2006 (Vic) Structure of the Act – Three tiered oversight Residential Treatment order/Supervised Treatment order Victorian Civil and Administrative Tribunal (VCAT) role Supervision of treatment of persons in detention Cases pursuant to the Act – DAJ (Guardianship) [2009] VCAT 972,

PSN (Guardianship) [2011] VCAT 857

Focus on Restrictive Interventions/Chemical Restraint Historical difficulties and consequential changes Implications for “detention-like” settings outside the Mental Health Act

ORIGINS OF THE DISABILITY ACT 2006 (Vic)

The Act replaced the Intellectually Disabled Persons' Services Act 1986 andDisability Services Act 1991.

The Disability Act provides for:

a stronger whole-of-government, whole-of-community response to the rightsand needs of people with a disability, and

a framework for the provision of high quality services and supports for peoplewith a disability

(dhs.vic.gov.au)

Disability Act 2006 Vic came into force on 1 July 2007

Commencement of new civil detention order

SUPERVISED TREATMENT ORDER

Objectives of Parliament and the Disability Act 2006 In the second reading speech, in Legislative Assembly in Hansard (p 419) Ms Garbutt

(Minister for Community Services) was acutely aware of the restrictive environment theperson with a disability would be subject to under the new Supervised Treatment Order.Hence Ms Garbutt goes on to outline measures in relation to supervised treatmentdesigned to protect the rights of the people subject to this treatment.

Ms Garbutt states, “The senior practitioner is responsible for the supervision of thesupervised treatment order. An application can be made to VCAT at any time to review,vary or revoke the order.”

“These provisions provide clear regulation and transparency around situations which arecurrently occurring without adequate external scrutiny. The bill ensure that the rights ofpeople subject to this form of treatment are adequately protected.”

OBJECTS OF THE DISABILITY ACT 2006 Section 4 relevantly provides:

The objectives of this Act are to –

(a) advance the inclusion and participation in the community of persons with a disability;

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(d) promote and protect the rights of persons accessing disability services;

(e) support the provision of high quality disability services;

(f) make disability service providers accountable to persons accessing those disabilityservices;

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CHARTER OF HUMAN RIGHTS ANDRESPONSIBILITIES ACT 2006 (VIC)

Came into force January 2007

Strengthened the aims and objectives of the Disability Act 2006

Need to be considered together

For example Treatment Plans disallowed when punitive

Disallowed denial of food (chocolate bars, soft drinks etc) as aform of “treatment”

Inhumane treatment

• Victorian Disability AdvisoryCouncil

Part 3, Division 2

• The Senior PractitionerPart 3, Division 5

• The SecretaryPart 3, Division 1

STRUCTURE AND ADMINISTRATION OFTHE DISABILITY ACT 2006

• Disability Services CommissionerPart 3, Division 3

• Disability Services BoardPart 3, Division 4

• Community VisitorsPart 3, Division 6

PART 8 – COMPULSORY TREATMENT

RESIDENTIAL TREATMENT ORDER Part 8, Division 1

Persons subject to criminal orders Annual treatment plan review

SUPERVISED TREATMENT ORDERPart 8, Division 5

No criminal orderDetention via civil order (STO)

Annual treatment plan review

WHO DOES THE ACT APPLY TO?

Persons with a disability defined in s3(1) not subject to detention

Persons with a disability subject to Compulsory Treatment either criminal or civildetention

Persons who commit sexual offences (approximately 50 males in the state and 1female)

Persons with autism

Persons with uncontrolled violence

Oversight of persons with a disability and their treatment plans Authorised Program Officer (APO)

Responsible for creation, implementation and compliance of treatment plan

Senior Practitioner (OSP)Responsible for overseeing and providing a certificate for treatment plans

Responsible for developing policies regarding restraints, supervision

Office of the Public Advocate (OPA)Notified of all persons under detention and advocate for issues and needs

VCATHear applications for STO

Approve, vary or dismiss STO applications with attached treatment plans

At least annual review of STO

Ensure compliance of treatment plan with the Act and the Charter of Human Rights

Hearings regarding “material changes” to treatment plans

PART 8 Compulsory Treatment

Division 1 – Residential Treatment Order 152. Admission to a residential treatment facility (1) A person with a disability may only be admitted to a residential treatment facility if the Secretary is satisfied that— (a) the person has an intellectual disability; and (b) the person presents a serious risk of violence to another person; and (c) all less restrictive options have been tried or considered and are not suitable; and (d) the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is

suitable for that person; and (e) the Senior Practitioner has been notified of the proposed admission; and (f) an order specified under sub-section (2) applies to the person enabling compulsory treatment to be provided.

(2) For the purposes of sub-section (1)(f), the following orders are specified— (a) a residential treatment order made under the Sentencing Act 1991; (b) a parole order made under the Corrections Act 1986; (c) a custodial supervision order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (d) an order transferring the person from a prison under section 166; (e) an extended supervision order made under the Serious Sex Offenders Monitoring Act 2005.

PART 8 Compulsory TreatmentDivision 5 – Supervised Treatment Order

183. Purpose of Division

The purpose of this Division is to provide for the making of a civil order, a supervisedtreatment order, to enable the detention of a person with an intellectual disability whoposes a significant risk of serious harm to others.

S191. Application for a supervised treatment order (1) An Authorised Program Officer may apply to VCAT for a supervised treatment order

to be made in respect of a person—

(a) who has an intellectual disability;

(b) who is receiving residential services;

(c) in respect of whom the disability service provider has prepared a treatment planapproved by the Senior Practitioner;

(d) who meets the criteria specified in sub-section (6).

CIVIL DETENTION UNDER SUPERVISED TREATMENT ORDER

S193 SUPERVISED TREATMENT ORDER If the requirements in S191 are satisfied then VCAT may make the order, amend the

treatment plan and make the order or dismiss the application Duration of Order unable to be longer than 12 months

S195 Material change provisions (DAJ) When increased level of supervision or restriction in the treatment plan

NECESSARY CRITERIA FOR CIVIL DETENTION

SECTION 191(6) (6) VCAT can only make a supervised treatment order if VCAT is satisfied that— (a) the person has previously exhibited a pattern of violent or dangerous

behaviour causing serious harm to another person or exposing another personto a significant risk of serious harm;

(b) there is a significant risk of serious harm to another person which cannot besubstantially reduced by using less restrictive means;

(c) the services to be provided to the person in accordance with the treatmentplan will be of benefit to the person and substantially reduce the significant riskof serious harm to another person;

(d) the person is unable or unwilling to consent to voluntarily complying with atreatment plan to substantially reduce the significant risk of serious harm toanother person;

(e) it is necessary to detain the person to ensure compliance with thetreatment plan and prevent a significant risk of serious harm to another person.

REQUIREMENTS OF TREATMENT PLAN Treatment Plan S191(7) (7) The treatment plan must include provisions which—

specify the treatment that will be provided to the person during the period of the supervisedtreatment order;

state the expected benefit to the person of the treatment; specify any restrictive interventions that are to be used; state the level of supervision which will be required to ensure that the person participates in the

treatment; set out a proposed process for transition of the person to lower levels of supervision and, if

appropriate, to living in the community without a supervised treatment order being required.

Implied Requirement of Treatment Plans: DAJ (Guardianship) [2009] VCAT 972 S195 requires VCAT to authorise material changes to treatment plan

therefore level of supervision and restriction must be specified in the planalthough not articulated in Act.

Level of restrictions include CHEMICAL RESTRAINTS as defined in the Act

RESTRICTIVE INTERVENTIONSCHEMICAL RESTRAINT Restrictive interventions to be documented in the treatment plan are defined in s3(1) of

the Act. "restrictive intervention" means any intervention that is used to restrict the rights or

freedom of movement of a person with a disability including— chemical restraint; mechanical restraint; seclusion;

Chemical restraint is included as a restrictive intervention, the Act defines chemicalrestraint to mean the following under s3(1):

"chemical restraint" means the use, for the primary purpose of the behavioural control ofa person with a disability, of a chemical substance to control or subdue the person butdoes not include the use of a drug prescribed by a registered medical practitioner forthe treatment, or to enable the treatment, of a mental illness or a physical illness orphysical condition.

What types of drugs are considered/used as chemicalrestraint?

Anti-Libidinal (Depo Provera, Androcur)

Anti-Depressants used for their anti-libidinal side effects (Citalopram)

Anti-Psychotic medication

Chlorpromazine (Largactil)

PRN behaviour modification drugs

VCAT CASE ON CHEMICAL RESTRAINT PSN (Guardianship) [2011] VCAT 857 * PSN 47year old man mild disability as a child * Frontal lobe epilepsy, paraphilia and severe osteoporosis * Long history of sex offences * 1998 PSN placed in Intensive Residential Treatment Program (IRTP) of Statewide Forensic

Services(SFS) under a Community Based Order * Order expired in mid 2000 * Appointment of a Guardian to determine continued detention and treatment * Public Advocate Appointed for accommodation decisions until 2004 when order revoked * 2004 onwards NO LEGAL ORDER existed to detain PSN at SFS until June 2007 (Disability Act) * During this time progressed through SFS treatment program and relocated to supported

accommodation for ongoing treatment, voluntarily * Questions about voluntary consent arose in 2009 after 5 episodes of absconding and an

alleged sexual assault of co-resident * Jan 2010, neuropsychological assessment suggested PSN unable to provide informed

consent hence application for STO

PSN judgment (continued) In determining applications for STO, requirements of section 191(6)(c) and 191(6)(d)

were main concerns

191(6)(c) requires treatment plan to be of benefit to person and substantially reduce therisk of serious harm to others

ISSUES: 12 years on anti-libidinal medication

No demonstrated efficacy

No monitoring of medication vs behaviours of concern/risk of harm to others

Inadequate monitoring of side effects

Significant side effects – severe osteoporosis, crushed vertebrae and fractured hip

191(6) (d) requires consideration of whether person unable or unwilling to consent totreatment Understanding of risks of continuing medication to health, whether of benefit, whether

improved chances of increasing access to the community, less restrictive options

Satisfied PSN unable to give consent but made STO subject to a Mental Health Plan beingprovided addressing the prolonged use of Anti-Libidinal drugs, efficacy and reduction in risk

PSN judgment continued July 2010 directions hearing Mental health plan submitted that did not address the concerns of the Tribunal

OPA, OSP and PSN legal representative suggested benefit not demonstrated by use ofDepo Provera and no information regarding its use reduced PSN’s risk to community.

“The OPA and PSN’s legal representative went as far as to say that the continuing use ofanti-androgens may constitute inhumane treatment under the Charter of Human Rights.(Section 10 Charter of Human Rights and Responsibilities Act 2006) They explained that thelack of correlation between PSN’s behaviours of concern and the use of anti-androgenmedication coupled with the significant detriment this medication poses to PSN’s physicalhealth no longer justified the use of anti-androgens.” PSN

August 2010 hearing Application by PSN for revocation of STO as s191(6)(c) was not satisfied. Wanted greater access to community but withdrew consent for Anti-Libidinal medication Policy of treating psychiatrist was to gain consent directly from persons with a disability If no consent, psychiatrist won’t administer medication

PSN (Continued) Psychiatrists administer Depo on basis of PSN consent PSN withdrawing consent OSP requested Tribunal consent to continuation of Depo However, OSP did not consider Tribunal could refuse consent as interference of psychiatrist’s

expertise, doctor patient relationship and therapeutic privilege

Determined: OSP opinion based on Mental Health Act 1986 giving psychiatrists ultimate authority Disability Act 2006, supervision of “chemical restraints” in a treatment plan defined in s3(1) Chemical restraints need to be specified in the treatment plan s191(7) Subject to variation by Tribunal before granting a STO s193 Subject to review by the Tribunal should the level of chemical restraint increase (Material Change

provisions s195) Hence chemical restraint was subject to VCAT oversight and IMPLICIT consent that is the Act does

not provide for VCAT to explicitly consent but by review and acceptance of the treatment plan withSTO, VCAT can consent

Note: psychiatrists will not forcibly administer depo to unwilling person

PSN (Continued) DETERMINATION 191(6)(c) requires treatment plan to be of benefit to person and substantially reduce the risk of serious harm

to others the term "benefit to the person" means maximising a person's quality of life and increasing their opportunity for social

participation (s3(1)). whether the services maximise PSN’s quality of life and increase his ability for social participation while substantially

reducing significant risk of serious harm to others.

CONSIDERATIONS Request to demonstrate benefit of Depo remained inconclusive. Significant lack of monitoring and demonstration of efficacy The negative effect of 12 years of anti-androgen use has posed a significant risk to PSN’s physical health. No endocrinologist referral until severe osteoporosis after 9 years use of Depo PSN’s main objective was to access the community Without Depo, APO was going to impose increased supervision when in the community Satisfied that on balance, the benefit to PSN was his main aim to access the community which improved his

quality of life Required immediate assessment by specialists concerning risk to PSN of ongoing Depo and potential

alternatives

Implemented changes after PSN

Centralised assessment of Anti-libidinal use by Psychiatrists at Disability ForensicAssessment and Treatment Service (Australia)

Less restrictive options must be tried first (ie anti-depressants)

If less restrictive options ineffective after therapeutic levels achieved, undertakemedical assessment for baseline and risks of use of Anti-Libidinal medication

Introduction of Anti-Libidinal medication is a material change to the treatment planrequiring VCAT approval

Monitoring and charting of medication and behaviours of concern to assess efficacy

Specialist referral after two years use to establish baseline for potential side effects

PENALTY UNITS AND THE DISABILITY ACT After 6 year of Disability Act,

Person E administered Depo Provera

3 months later Authorised Program Officer(APO) applied for emergency approval for DepoProvera from OSP

OSP refused approval and requested APO apply to VCAT

3 months later APO applied for “Material change” to treatment plan for Person E at VCAT;still not approved by OSP

At hearing, no Mental Health Plan

No less restrictive options indicated as having been tried

No baseline assessment indicated

All parties (OPA, OSP, APO, Legal rep for person E) all considered appropriate for matter tobe referred to enforce Disability Act Penalty Points against APO

S 190 imposes PENALTY UNITS on APO for non compliance with Division

IMPLICATIONS FOR DETENTION-LIKE SETTINGS Nursing Homes Hospital wards Locked hospital facilities

Chemical restraint Used to limit freedom and modify behaviour and/or sedate the individual Think about reasons for use – staff convenience, discipline or other non medical

uses (ie not therapeutic) What are the likely short and long term effects Is there a less restrictive option Is the person informed and can consent, if not is there consent on their behalf Especially long term, use of chemical restraint usually doesn’t attend to an

underlying cause of the behaviour

IMPLICATIONS IN DETENTION-LIKE SETTINGS (Continued)

In Australia, currently regulations not legislation

In USA, Federal and State Laws aim to minimise the use of chemical restraint in NursingHomes “Nursing Home Abuse Guide – Paul and Perkins PA”

IMPLICATIONS FOR “DETENTION-LIKE” SETTINGS Physical Restraint • The prevalence of physicalrestraint in aged care facilities varies and evidence suggests prevalence ranges

from 12–49% (Evans et al.,1997, Feng et al., 2009; Retsas 1997, 1998; Hamers, Gulpers & Strik, 2004; Retsas &Crabbe 1997, 1998).

• Physical restraints can have a range of adverse psychological and physical effects. Research has shown thatoverall physical restraints do not prevent falls and may in some cases cause death (Enberg, Castle &McCaffrey, 2008; Tang, Chow & Koh, 2012; Evan et al., 2003; Karger et al., 2008; Rakhmatullina et al., 2013;Barnett et al., 2012).

• There are some situations in which it may be appropriate to use physical restraint for a short period of time,but clinical guidelines indicate that physical restraints should always be an intervention of last resort (Burns etal., 2012; Gastmans & Milisen, 2009).

• There are a wide range of environmental, strength-promoting, surveillance and activity-based alternatives tousing restraints (Burns et al., 2012).

• It is best practice to ensure that consultation takes place with the carer and/or legal representative prior tothe decision to apply restraint. In an emergency situation this may not be possible immediately but should bedone as soon as possible. Jurisdictional variations in guardianship legislation govern the roles of proxydecision-makers in giving consent to restraint on behalf of people unable to give informed consentthemselves (Department of Health and Ageing, 2012).

THE USE OF RESTRAINTS AND PSYCHOTROPIC MEDICATIONS IN PEOPLE WITH DEMENTIA A REPORT FOR ALZHEIMER'S AUSTRALIA PAPER 38 MARCH 2014 By Associate Professor Carmelle Peisah and Dr Ellen Skladzien

PSYCHOTROPIC MEDICATIONSAbout half of people in residential aged care facilities and up to 80% of those with dementia are receivingpsychotropic medications, although this varies between facilities. There is evidence to suggest that in somecases these medications have been prescribed inappropriately (Hosia-Randell & Pitkälä, 2005; NationalPrescribing Service, 2013).

• Behavioural and psychological symptoms of dementia (BPSD), although variable in severity are commonand affect almost all people with dementia sometime during their illness (Selbaek et al., 2014; Brodaty et al.,2001).

• BPSD have a range of physical, environmental and psychosocial causes (Chenoweth et al., 2009;Brodaty et al., 2003).

• The evidence supporting the effectiveness of psychotropic medications in treatingBPSD is modest at best, withsome support for atypical antipsychotics. International data suggests that up to 20% of people with dementiawho receive antipsychotic medications derive some benefit from the treatment (Chenoweth et al., 2009;Brodaty et al., 2003).

• Psychotropics have a range of serious side effects and are associated with increased mortality for people withdementia (Hien et al., 2005; Katz et al., 2004; Hedges et al., 2003; Byerly et al., 2001; Schneider et al., 2006;Ballard, 2009b; Brodaty et al., 2003).

THE USE OF RESTRAINTS AND PSYCHOTROPIC MEDICATIONS IN PEOPLE WITH DEMENTIA

A REPORT FOR ALZHEIMER'S AUSTRALIA PAPER 38 MARCH 2014

By Associate Professor Carmelle Peisah and Dr Ellen Skladzien