BYC [2020] NSWCATGD 69

Background

1. BYC is a 53-year-old man who lives in supported independent living accommodation in regional NSW managed by a disability service provider. It is reported that BYC had a traumatic early childhood and fractured family relationships.
2. BYC has been known to the Tribunal since 2006 when the Tribunal initially made a guardianship order. In the intervening years that order has been reviewed and renewed. Most recently, on 23 September 2015 JZC, psychologist, was reappointed as BYC's guardian for a period of five years with the functions of accommodation, health care, medical and dental consent and services.
3. On 24 September 2020 the end-of-term statutory review of that order was adjourned to allow for the provision of evidence and the participation of Ms Z, behaviour support practitioner, in the hearing.
4. These Reasons for Decision should be read in conjunction with previous Reasons for Decision of the Tribunal in relation to BYC.

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. As the hearing was held during the COVID-19 pandemic it was conducted entirely by telephone.

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are:

• Is BYC someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?
• Should the Tribunal make a further guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is BYC someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]: "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in the community with others."
3. When the previous orders were made, the Tribunal accepted that as a result of autism spectrum disorder and intellectual disability, BYC was incapable of making important life decisions. There is no new information in this regard.
4. The Tribunal is satisfied that BYC continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. BYC participated in the hearing, however, as a result of his disabilities he was unable to provide a view.
4. JZC provided us with an appointed guardian statement and participated in the hearing. JZC believed that the order should continue in its current form. In 2009 BYC had a penectomy after an episode of self-harm (tying an object around his penis for an extended period of time). Due to this, BYC has a Supra-Pubic Catheter that helps his bladder drain via direct insertion into the bladder and urine drained into a bag on his leg. She said that BYC has ongoing health care issues and would benefit from a review by a clinical nurse specialist with disability and health expertise to ensure that he receives the specific care he requires.
5. BYC is prescribed major medications and is regularly reviewed by his treating psychiatrist, Dr Y. JZC said that as she is not a family member it would be helpful for the medical and dental consent functions to continue to be attached to an order so that she can provide or withhold consent to treatment on BYC's behalf.
6. JZC considered that it is likely that there will be a change in accommodation over the next few years. JZC has advocated for BYC with the National Disability Insurance Scheme (NDIS) and said that there are ongoing decisions to be made in the area of services. As there are restrictive practices contained in the Behaviour Support Plan (BSP), JZC requested that a restrictive practice function be attached to the order.
7. Ms X, team leader, and Mr W, disability support worker, supported a further order being made with the functions of accommodation, medical and dental treatment, health care, services and restrictive practices.
8. We were provided with a BSP from Ms Z of a support services provider. This BSP contains restrictive practices that require the consent of a guardian if they are to be implemented by NDIS funded providers, including the disability service provider.
9. In HZC [2019] NSWCATGD 8 the Tribunal described the change in the way restricted practices are now dealt with in NSW. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguarding Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices.
10. Registered NDIS providers and behaviour 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. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6): 1. Seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted; 2. Chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment or, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition; 3. Mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes; 4. Physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person; 5. Environmental restraint, which restricts a person's free access to all parts of their environment, including items or activities.
11. The BSP identified a number of restrictive practices. The plan referred to the prescription of routine psychotropic medications as chemical restraint to influence BYC's behaviour. However, we were told that BYC's treating psychiatrist, Dr Y, most recently reviewed BYC on 21 August 2020 and noted that he had prescribed these medications as mood stabilisers to treat bipolar disorder. We were therefore satisfied that the administration of these medications is not chemical restraint, as the primary purpose for which they are prescribed by the treating doctor is to treat a diagnosed mental condition.
12. The BSP refers to the front gate to the property being locked overnight to ensure that BYC does not leave his unit without staff support. The service model means that although BYC is funded 1:1 until 9pm, overnight he shares active overnight staff with his co-residents. Ensuring that BYC remains in his unit enables staff to support him. BYC is very vulnerable in the community due to a lack of road safety skills and difficulties with interpersonal interactions. We were told that BYC likes his own space and does not want people in his unit 24 hours a day, especially at night. He appears to settle to bed easier when staff have left his unit for the evening. Throughout the day the gate is open. We were satisfied that even though BYC does not object to the gate being locked at night, it still constitutes environmental restraint as his freedom of movement is restricted.
13. The BSP refers to restricted access to staff when BYC's behaviour is at crisis level (property damage or risk to staff safety). When this happens staff enter the office and lock the door for their own safety. BYC always has access to drinks, snacks, TV and his belongings.
14. The BSP refers to the use of a small camera placed in the lounge room to monitor BYC's well-being when he is distressed for a prolonged period. If staff have left the unit due to BYC's behaviours of concern they can monitor him settling from the safety of the main staff office. The BSP referred to this monitoring device as environmental restraint. We considered that it does not fall within the definition of environmental restraint as BYC's freedom of movement is not limited at all. Rather we considered that the use of such a device could be monitored and consented to by a guardian conferred with a specific function relating to the circumstances in which a monitoring device could be used. In any event, this was unnecessary as Ms X and Mr W said that the camera is no longer used as BYC has been very settled. We were satisfied that there was no need for a guardian to make decisions about the camera as it is not utilised.
15. The BSP contains the environmental restraint of restricted access to food. We were told that without staff support BYC may eat food that has not properly been prepared or eat excessive amounts of food or drink. BYC requires support and supervision to ensure that he eats healthily, does not cook without staff support and manages his food budget to last the week. Bulk items (such as litres of milk, snacks, ice blocks, cereals and frozen food) are kept in the staff office which is locked overnight. BYC has access to healthy snacks, water and milk in his fridge and cupboards in his unit that he has access to at all times.
16. We were satisfied that the BSP contains environmental restraints that require the consent of a guardian with a restrictive practice function if they are to be implemented by an NDIS registered service provider such as the disability service provider.
17. We were satisfied that there is no informal way for BYC to practicably receive services without a guardianship order in the circumstances in which he is placed.
18. A further guardianship order will not impair the preservation of BYC's family relationships or impact his cultural or linguistic environment. Through social media JZC recently located BYC's brother, Mr V, who resides in regional Queensland. Mr V was not aware that his brother was still alive having been told that he had passed away many years earlier. The interaction between BYC and Mr V over the telephone during the hearing was lovely to hear. We were satisfied that JZC's actions in discovering Mr V have enhanced BYC's quality of life.
19. We were satisfied that there remains a need for a guardian to make decisions about the services that BYC is to receive. His health care needs are complex and there is a need for a guardian to make decision in the areas of health care, medical and dental consent. We were also satisfied that there is need for a guardian to make decisions about BYC's accommodation. The restrictive practice function is also to be attached in relation to environmental restraint. The guardian may only consent to the restrictive practices referred to in this order in accordance with the restrictive practice condition attached to the order.

Who should be appointed as the guardian?

1. The Tribunal has previously decided that JZC meets the requirements of the Guardianship Act and may be appointed as guardian for BYC.
2. All the participants in the hearing supported JZC's reappointment. Mr V commented on the exceptional work JZC has done as BYC's guardian.
3. We were satisfied that JZC continues to meet the requirements of the Guardianship Act and reappointed her as guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We decided to make the order for five years.
2. However the Tribunal can make an order of up to five years if the person has a permanent disability, is unlikely to regain the capacity to make important life decisions, and there is an ongoing need for decisions to be made by a guardian.
3. We were satisfied that BYC has a permanent disability and is unlikely to regain the capacity to make important life decisions. We considered that a longer order should be made as decisions will continue to be required to be made for the foreseeable future in these areas. It also hoped that the implementation of the BSP over time will lead to the fading out and reduction of restrictive practices.
4. We therefore decided to make the order for a period of five years.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021