Focus on me: tipping the balance in restrictive practices

Queensland Advocacy Incorporated Restrictive Practices Vs Human Rights Forum

30 August 2013

David Manwaring

Karen Williams

Introduction

• Time constraints prevent anything more then a snapshot of how (we believe) the restrictive practices regime in Queensland is failing to uphold its human rights objectives and obligations.

• We will provide an overview/case examples of QAI’s work around restrictive practices.

• We will briefly explore what is missing in the Queensland legislation and make some broad recommendations for change.

• Present examples/case studies from jurisdictions where human rights are more closely considered in the use of restrictive practices.

• This presentation is not meant to denounce or criticise any individual or organisation but is somewhat a collective reflection of the lived experiences of people with disabilities and their families.

Background

• In 2006 Justice William Carter produced a report titled ‘Challenging Behaviour and Disability a Targeted Response’.

• Justice Carter had been briefed to explore options for a targeted service response and make recommendations on legislation to meet the support needs of people with an intellectual disability who exhibit severely challenging behaviour.

• The Carter report highlighted that restrictive practices can cause injury to a person with a disability are a potential violation of the person’s human rights

• The report also identified that service providers relied too heavily on restrictive practices, despite the evidence base to support the use of a positive behaviour support approach to addressing challenging behaviours.

• In response the Queensland Government introduced the following provisions to regulate restrictive practices: Part 10A - Disability Services Act 2006 & Chapter 5B - Guardianship and Administration Act 2000.

• These provisions seek to establish measures so that restrictive practices used by service providers

1) takes account of the person's human rights

2) are the least restrictive way

3) used only when necessary, and then

4) only in limited circumstances.

• It is arguable whether these objectives are in fact being met.

What are Restrictive Pratices?

• Restrictive practices are defined in s123E of the Disability Services Act to mean —

(a) containing or secluding an adult with an intellectual or cognitive disability; or

(b) using chemical, mechanical or physical restraint on an adult with an intellectual or cognitive disability; or

(c) restricting access of an adult with an intellectual or cognitive disability.

• Restrictive practices can also be said to be the legally authorised assault and detention of people with disabilities.

Human Rights

• Restrictive practices are a human rights issue!*1

• Except in extreme circumstances the use of restrictive practices breaches obligations under the Convention on the Rights of Persons with Disabilities (CRPD).*2

• Article 15 CRPD prohibits the use of torture, and inhuman or degrading treatment or punishment.

• Article 16 mandates freedom from exploitation, violence and abuse of people with disabilities.

• Article 19 states that Parties must ensure the protection of the physical and mental integrity of people with disability on an equal basis with others.

• All strong mandates for the abolition of restrictive practices or at the very least that there use is significantly reduced, and only implemented for the minimum period necessary.

Considerations

• Evidence indicates that supporting choice and understanding the drivers or triggers for behaviours of concern are more effective responses to ‘challenging behaviours’ than restrictive practices. (Challenging behaviour: a unified approach, Royal College of Psychiatrists, British Psychological Society and Royal College of Speech and Language Therapists 2007)

• The aim of any intervention should be to improve the quality of life of people whose behaviour challenges services, not to degrade it.

Reflection point

‘Difficult behaviours are messages which can tell us important things about a person and the quality of his or her life’

David Pitonyak

How many people are subject to restrictive practices in Qld

• According to the Adult Guardian’s Annual Report 2011-2012 As at 30 June 2012, there were 307 adults for whom the Adult Guardian was

appointed as guardian to approve the use of restrictive practices.*3

11% of the 615 new guardianship appointments in 2011–2012 were for restrictive practices, this equates to 68 new appointments.

• According to the Queensland Civil and Administration Tribunal (QCAT) Annual Report 2011-2012 Restrictive practices guardians

Appointed 84 new guardians and reviewed 384 existing appointments

Containment made 10 new orders and reviewed 42 orders

Seclusion made 12 new orders and reviewed 43 orders

Other restrictive practices Made 10 new orders and reviewed 49 orders

Common themes found in clients that QAI have assisted

• The regime is not person centred, but service provider orientated, focusing upon the contractual relationship between the service provider and the Department. Interactions are directed at simply changing behaviour, keeping the person quiet,

not focused on needs of the adult or outcomes identified.

• Offers little dignity/ respect to the person or their support network.

• The process is not inclusive, strong family guardians are Marginalised not listened to, their input excluded, not sought or valued Labelled as ‘difficult’ Threatened with having guardianship challenged

• Family do not feel like active participants.

• Lack of open meaningful communication – simply told not consulted.

• QCAT is intimidating, feelings of dread, don’t really listen to what we say.

• The use of restrictive practices, is not always last resort, often implemented immediately – so not least restrictive Lack of training to appreciate person’s circumstances Inadequate staffing Funding

• Lack of understanding of guardian’s and/or restrictive practice guardian role. seeking opinion/advice from their own medical expert, without consultation or

communication with health guardian, Demonstrates institutional approach, “thinking in silos”

Service providers seek short term approvals if they fail to get consent from the restrictive practice guardian and sometimes without their knowledge*4

Families quickly labelled as difficult and their authority is “worked around”

• Use of restrictive practices breeds ‘challenging behaviours’*5

• The Positive Behavioural Support Plans (PBSP) or Short Term Plans do little to encourage use of positive strategies – merely outlining what is meant to happen. Vague statements of what might happen, rather than actual detailed plan.

•PBSP difficult to understand and little family/client input.

•On ground workers fail to understand the PBSP or short term plans.*6

So plan not implemented

•Lack of staff input – little interaction with the adult – are like minders.

•Failure to understand there is a reason for the person displaying challenging behaviours they are not just being difficult.*7

•Occupational Health and Safety issues appear to trump the person’s human rights.

Organisations may need assistance to deal with competing obligations.

•Perception that restrictive practices is a cost saving measure.

•Feel lost!

Case Example 1 - Stuart

• Stuart commenced with service provider in 2009/2010 who did not favour a least restrictive approach to his care.

• QCAT approved the service provider to use seclusion & containment and restrict access to objects, following a period of Short Term Approval (STA) by Office of the Adult Guardian.

• Seclusion was approved for up to 12 hours in a 15 hour period (in addition to Stuart being secluded overnight).

• Stuart was essentially contained 24/24 – unless on community access.

• Community access was often walks in grounds amongst institutional care facilities– not meaningful (unless access was with family)

• Service provider unlawfully used restrictive practices on at least two occasions!

• This unlawful use was denied and the investigation by Communities favoured the service provider explanation (however at least one staff was dismissed for these incidents).

• Stuart’s family marginalised and cast in a negative light – especially his father!

• Stuart and his family were challenged by service provider at every turn.

• Service provider made application to QCAT seeking appointment of Adult Guardian, on 2 occasions– but it was not granted.

• Stuart’s brother appointed as guardian and administrator – service provider failed to appreciate his role or duties as guardian or indeed their own obligations in regard to consent/communication.

• Stuart wanted to live in his own house and closer to his family, but he particularly wanted to change service providers.

• Even these decisions were challenged –the service provider made urgent application to QCAT (just before Stuart began the planned transition) seeking an interim order to remove Stuart’s guardian and prevent Stuart’s transition to his new residence and service provider. The enormous conflict of interest on the part of the service provider in bringing

application to stop transition to other service not acknowledged.

• Application not granted.

• Around this time Stuart informs family that staff were abusing him – put in dresses, belittled – complaint made to police – dismissed by service provider and Communities.

• July 2012 Stuart moves into his own house and has a new service provider.

• Stuart’s new service provider has a different approach.

• Stuart is no longer living with or under restrictive practices.

• Stuart is actively living & engaging in community – no adverse incidents.

• Importantly this is what Stuart wanted – to be like everyone else! ( however he really would like to have no service provider or carers).

Case Example 2 - Wendy

• Wendy lives in a block funded residence with co-tenant.

• Wendy is subject to restrictive practices– restrict access to objects.

• Wendy has a restrictive practice guardian.

• When restrictive practices used on co-tenant, Wendy is also affected Doors to bedrooms and entry of house locked Confined to a room alone

• Wendy’s behaviour is unsettled as a result – ‘challenging behaviours’.

• Service provider applies for STA for chemical restraint and to increase restrict access to objects Service providers fail to consult with Wendy’s RP guardian Assessor of application consults with RP guardian/parent via email only

• Attempts to minimise the impact the situation having on Wendy.

• Wendy’s human rights breached on many levels No choice in accommodation/housemate Discrimination Lack of respect for Wendy – her individual value Limitation of freedom

• Wendy unlawfully subjected to restrictive practices.

• When parent/guardian complained informed a funding issue.

• Illustrates how the restrictive practices provision objectives are not met!

• Illustrates how the legislation can be subverted – re RP guardian.

• Highlights the need for greater education on role role of guardians

• Highlights need for disability service wide commitment to least restrictive.

What is missing in narrow and broad sense in the Queensland legislation.

• There is no real system of ensuring people are aware of their rights.*8

• Complaints system is not transparent, nor independent, nor rights focused*9

Not expeditious, can take weeks/months for investigation to occur.

• No independent on the ground monitoring or auditing so inappropriate implementation of restrictive practices is unlikely to be identified or addressed.*10 Advocacy is not seen as mainstream, unlike NZ or UK.

• No proportionality/reasonableness test for using restrictive practices and limitations on a person’s human rights. This would be particularly important issue for QCAT to consider*11

• The human rights principles set out in section 19 of the Disability Services Act as well General Principle 2 of the Guardianship and Administration Act merely encourage human rights to be taken into account, so they are declaratory in nature. These provisions need to be made operational in respect to the restrictive practices regime. Complaints, monitoring, advocacy and more importantly hearings, should be

conducted through the “lens” of the UNCRPD.

We have some examples of other jurisdictions, where breaches of human rights are investigated and remedied.

• Little attempt to foster a compliance culture*12

No penalties for breach

No reference to rights in QCAT, Short Term Approval process or complaint process, unlike New Zealand Health and Disability Commissioner

• No independent complaints process.*13

• The approach to looking at concerns around restrictive practices can be fragmented Reviewed at QCAT

Reviewed by Adult Guardian

Community Visitor

Department complaints mechanism

• PBSP’s tend to be the accumulation of much data, and are broadly written. Hard to identify future actions (i.e. plan).

Tend to “encroach” on other decisions, diet, other medical treatment etc, without family consultation.

Broad based recommendation for change

• Person centred approach.

• Natural justice – open and transparent decision making.*14

• Mandate that service providers must consult with RP guardian and only after real effort been make can they apply for STA. Perhaps SRS could become involved here – or QCAT ordered mediation or conferencing.*15

Service providers and statutory agencies quick to “takeover” roles, where family have necessary authority. This undermining should be actively discouraged at every level.

• Independent /Statutory body as decision maker authorising restrictive practices with experience in reducing behaviours of concern*16

Separate from adult guardian who should have more of a monitoring role, reduces potential for conflict and role blurring.

QCAT may be able to fulfil this role

• Only clinically appropriate persons specialists should make short term approvals, in order to truly question requests, and ascertain the veracity of other “least restrictive” attempts

• Legislated minimal observational requirements when seclusion or containment is used, and maximum periods for use of seclusion (like in MHA)*17

• Legislative emphasis on prohibition of restrictive practices, as opposed to the current permissive approach. No understanding in the sector that unlawful Restrictive Practices amounts to

false imprisonment.

Disregard for human rights.

• Restrictive Practice Order attaches to the person, not service provider Individualised and client centred approach prevented by primary relationship

between service provider and Department

Currently, previous PBSP’s with other service providers are not considered, and the process starts from the beginning, dehumanising process, fails to be inclusive.

Allows greater examination of human rights

Room for advocates

• Clearer/consistent definitions/examples*18

• Consideration of professionally responsible/ethical standards when

developing PBSP Plans have been written that bear no relationship with the conditions that the

person is living under. This misrepresents the person’s situation and misleads

QCAT. – RE GAS [2013] QCAT 194

In other jurisdictions, America and UK, this is viewed as a professional and

ethical misconduct issue.

• PBSP should be less complex or mandated executive summary of operational future elements, so that it is clear what is to occur that is different to what is happening now, and who is responsible for making it occur, and when it is expected to occur.

• Changes to PBSP (after approval by QCAT) – must be open to independent

review not merely notification from Chief Executive, Communities!*19

• Seclusion & Containment orders require automatic review every 6 months

(as is the case with Involuntary Treatment Orders or Forensic Orders)

• Short Term Approvals only three months duration Only one extension and then only in truly exception circumstances

• Legal Representation offered to all people placed under restrictive practices Ensures appropriate advocacy of person rights.

UK have this in place for their Deprivation of Liberty Safeguards. Their role is to

continue to negotiate with service provider to ensure safeguards are met.

• Independent external compliance mechanism.*20

Community Visitor Program to utilise the UNCRPD when performing visits.

• Database – needed to accurately record use – if going to reduce it must acknowledge it. Allows development evidence based approach/best practice.

This information should not be “owned” by the service provider. If the PBSP actually belonged to the person, then it could be shared, updated, amended as they moved to different service providers.

Currently, the situation is that everyone starts from the beginning, for the new service provider seeking RP.

This information would be best maintained by an independent body.

Complaint mechanisms/review in Victoria and New Zealand

• Victoria – Disability Services Commissioner.

• Has existed for over 5 years.

• Encourages a culture that receives complaints.

• Number of complaints continue to grow (2012 Annual Report).

• Main areas of complaint: Communication Physical abuse, neglect, in particular staff to client abuse Individual Funding packages Shared Supported Accommodation Family related issues – failure to involve family Staff behaviour and attitudes

New Zealand

• Health and Disability Commissioner established by legislation.

• Able to conduct investigations.

• Promotes advocacy.

• Establishes a code of rights including; respect, anti-discrimination, dignity, services of an appropriate standard, communication, information, choice, support and to complain.

• Results of investigations are published, including breaches by professionals and service providers of these code of rights. Individual names are confidential, but breaches by organisations & service providers are named.

Independent Complaint Bodies

• Required to investigate complaints in a transparent way. Publish number, type of complaint and outcome of complaint.

Issue findings.

• Currently in Queensland complaints are internal, there is a conflict of interest between Department as funder of service providers and Department as investigator of complaints against service providers. Poor history of substantiating complaints.

Minimal use of human rights framework as a measure or framework for investigation or recommendations.

Failure to recognise vulnerability of complainant, as against service provider

Victoria and New Zealand have an independent Commission

Case Studies – Vic

• AC (Guardianship) [2009] VCAT 1186

• Orders were made in relation to a 26 yr old male – AC- who lived in a Victorian institution. AC had a part-time job and close contact with his parents.

• AC had a history of violent and impulsive behaviour.

• The institution sought to place him on a “supervisory treatment order”.

• VCAT identified his human rights that were being breached. These rights included: Anti-discrimination Not subjected to medical treatment without consent Freedom of movement Privacy Arbitrary detention

• VCAT needed to ensure that the breaches of these rights were proportional to the need for supervised treatment and they were actually “least restrictive”

Case Study NZ

• Health and Disability Discrimination Commissioner (H&DC).

• Case 10HDC00420, involving Ms A, a person with intellectual disability.

• This investigation (published on H &DC website) found that the operator of a group home failed to provide a safe system of care and adequate training for their support staff. They also found that a support worker used excessive force.

• The operator failed to provide services to the adult with reasonable care and skill.

• Staff were found not to have taken steps to minimise the use of restraints, and did not utilise restraints in a safe and respectful manner.

Case Study NZ cont’d

• H&DC recommended:

Parents explain breaches to person.

Appropriate annual education provided to staff, including human rights, advocacy and least restriction.

External audit of procedures.

Service provider to access to expert for development of behaviour support plans.

Remove conflicts of interest from board.

Board members understand contemporary disability practice

Conclusion

• Legislative reform alone does not effect cultural and practice change.*21 (Kim Sanders, 2009, The Effects of an Action Plan, Staff Training, Management Support and

Monitoring on Restraint Use and Costs of Work-Related Injuries. Journal of Applied Research in Intellectual Difficulties).

• The underlying positive behaviour framework and commitment to use “the least restrictive alternative” MUST BE fully implemented by all within the disability service sector.*22

• Restrictive practice to only occur in transparent and accountable way – maximum effort to implement Article 12, so that there is independent review, tailored provisions to the individual person, and they apply for the shortest possible time.

• A National Framework for Reducing the Use of Restrictive Practices in Disability Services is currently being developed. This framework aims to put in place nationally consistent overarching principles and strategies to guide the reduction of the use of restrictive practices. Therefore any changes to our legislation/policy/framework must take this into account.