BYL [2020] NSWCATGD 51

What the Tribunal decided

1. The Tribunal appointed MZL as BYL's guardian for a period of one year to make decisions about his accommodation, services, health care, medical and dental treatment and restrictive practices, being mechanical, environmental and chemical restraint.

Background

1. BYL is a 31-year-old man, who lives in supported accommodation in Cranbrook with four other men. He receives 24-hour care provided by a community service provider. His sister is MZL. Reports provided to the Tribunal indicate that BYL has severe intellectual disability and is non-verbal. He has autism, bipolar and attention deficit hypoactivity disorder.
2. MZL has asked the Tribunal to appoint a guardian for BYL. The application raised concerns about her ability to make decisions about access to services, and liaise with the National Disability Insurance Scheme (NDIS). Furthermore, the reports show that there are environmental, mechanical and chemical restraints in place for BYL.
3. The matter before the Tribunal is the hearing of MZL's application for the appointment of a guardian.

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.]

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

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

Is BYL someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) ("the Act") 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": the 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: the Act, s 3(2).
2. There is no dispute about the fact that BYL lacks the capacity to make decisions for himself. The Tribunal was provided with the following reports: 1. Positive Behaviour Support Plan by Mr Z, dated 20 March 2020 (29 pages); 2. Family and Community Services Aging Disability and Home Care records over various dates including medication charts; 3. Letter by Dr Y, undated, but received by the Tribunal on 15 May 2020; 4. Report from Mr Z, Behaviour Support Specialist, undated, but received by the Tribunal on 15 May 2020.
3. These reports confirm that BYL has a diagnosis of autism spectrum disorder (level 3), severe intellectual disability, attention deficit hyperactivity disorder and bipolar disorder with recurrent hypomanic episodes. He has limited communication and cognitive ability and uses body language and behaviour to express himself.
4. Mr Z reported that BYL has severe cognitive impairment and cannot make appropriate plans or informed choices about his lifestyle. He is able to engage in superficial decision making only, for example, choosing between two different food items.
5. MZL agreed with the information set out in those reports. She told the Tribunal that she makes all the decisions for BYL on an informal basis.
6. Because there was no dispute about this issue, and because the medical records support the applicant's submissions, the Tribunal accepts that BYL has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a 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 Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. The applicant told the Tribunal that there is a need for a guardian to make decisions about a range of BYL's lifestyle needs. She told the Tribunal that whilst BYL has been living in his current home since he was 18 years of age and she was concerned about the effect that changing his accommodation might have on him, she does not believe that he is safe in his current environment.
4. For some years, another resident of the home has been assaulting BYL. MZL told the Tribunal that when she originally raised her concerns with the Operations Manager, she was assured that it would not happen again. She added that, in the past, she has been told words to the effect: "Boys will be boys" and she was persuaded not to make any decisions at that time.
5. However, recently, she has ascertained that the violence directed towards her brother is more frequent. She has noticed visible signs of injury to his head and face and has now started to actively consider an alternative placement. She told the Tribunal that she wants him to be safe and has had to balance the notion of BYL moving from the home with which he is familiar and where he has friends with ensuring that he is in a safe environment.
6. For this reason, she said there is a need for a guardian to make decisions about his accommodation and to advocate on his behalf in relation to this issue.
7. Her evidence was not disputed and the Tribunal, therefore, accepted it.
8. The applicant also told the Tribunal that there is a need for a guardian to make decisions about BYL's access to services. She said that he is the recipient of a NDIS plan. She said that her authority to make decisions on behalf of BYL has often been questioned by the National Disability Insurance Agency. She believes that it is in BYL's best interests that her decision making authority is unambiguous, so that she can forcefully advocate for the provision of a service that includes alternative accommodation if that is required. She added that there is also a need for a functional assessment by an Occupational Therapist. BYL's Service Coordinator is currently trying to find an appropriate practitioner to conduct that assessment.
9. The Tribunal accepted the applicant's evidence, because it was not contested, to the effect that there are decisions to be made about BYL's access to services and to advocate on his behalf in relation to his NDIS package. The Tribunal also accepted the applicant's evidence that her authority to make decisions on his behalf has been questioned in the past. The Tribunal is satisfied that it is in BYL's best interests that his substitute decision maker is formally identified so that decisions can be made in an expedient manner.
10. Additionally, the applicant submitted that she has concerns about the level of medication that BYL is taking and its side effects. The information provided to the Tribunal confirmed that BYL has been prescribed Epilim, Seroquel and Risperidone on a routine basis by his Psychiatrist, Dr X, in Western Sydney. His medication was last reviewed on 24 June 2020, according to the evidence provided by Mr W, Acting Team Leader.
11. MZL told the Tribunal that she has not been approached to provide consent for that medication and that, furthermore, she has actively requested to be advised of any consultation with the Psychiatrist so that she could participate. This did not occur on the most recent occasion. She told the Tribunal that she would like to have the authority to consider whether BYL requires a new medical practitioner so that she can provide or withhold consent to his medication. She said that her authority to make decisions about his medical treatment has also been questioned.
12. The Tribunal accepts the applicant's evidence. Mr W confirmed that the applicant had not been advised of the medical appointment. He corroborated the applicant's evidence that BYL has been prescribed a range of major medications.
13. The Tribunal is, therefore, satisfied that there is a need for a guardian to make decisions about BYL's access to health care and to provide or withhold consent to medical and dental treatment.
14. The documents provided to the Tribunal suggest that the psychotropic medications have been prescribed to manage BYL's behaviours of concern. Mr W confirmed that Dr X does not consider this to be a restrictive practice.
15. It has long been understood that some members of our society, who receive ongoing support in their activities of daily living, may engage in certain behaviours which involve physical or other risks to themselves and others and that responses need to be developed to reduce or remove those risks.
16. Over time, those behaviours have commonly been described as "challenging behaviours," or more recently, "behaviours of concern" and the practices used to reduce or prevent them have become known as "restrictive practices".
17. Registered NDIS providers and behavioural 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.
18. 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 of, 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 restrict a person's free access to all parts of their environment, including items or activities.
19. Because the question of whether BYL's psychotropic medications have been prescribed to treat a diagnosed psychiatric condition, or to manage behaviours of concern is ambiguous, the Tribunal is of the view that it is likely that the administration of these medications constitutes chemical restraint. For this reason, the Tribunal is satisfied that there is a need for a guardian to make decisions about the use of chemical restraint.
20. Furthermore, the Behaviour Support Plan of Mr Z includes a plan to use a buckle guard when BYL is being transported in the house van. The Behaviour Support Plan indicates that this was to be introduced on 20 March 2020 and reviewed at the end of June 2020. The applicant told the Tribunal she has not been advised that this was proposed.
21. Mr W told the Tribunal that this plan has not, in fact, been implemented. Because he was the Acting Team Leader and did not have a long-term involvement in the group home, he was unable to provide further evidence to the Tribunal as to whether this plan was to be implemented in the near future.
22. The use of a buckle guard constitutes mechanical restraint.
23. The Behaviour Support Plan also included a plan to restrict access to BYL's environment. The fridge and the pantry in the kitchen are locked to prevent him from gorging on food and eating inedible items. BYL also has restricted access to water in the kitchen and the bathroom.
24. There is also a proposal to include a physical barrier, namely a wall with a door to separate BYL from the other resident. MZL indicated that it is doubtful whether this plan will protect BYL as designed. The wall has not yet been built.
25. The Tribunal attempted to contact Mr Z to participate in the hearing. However, he did not respond to the Tribunal's telephone calls. It was, therefore, not possible to obtain further information from him. The best evidence available to the Tribunal, therefore, was his Behaviour Support Plan, which was due to have been reviewed prior to the hearing. There is no evidence that that review has taken place.
26. Nevertheless, it is clear that the plan includes mechanical, environmental and chemical restraints. For that reason, the Tribunal is satisfied there is a need for a guardian to make decisions about the use of those restrictive practices.
27. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made with the guardian having the functions of accommodation, services, health care, medical and dental treatment and restrictive practices, being mechanical, environmental and chemical restraint.

Who should be the guardian?

1. There is a proposal that MZL, the applicant in this matter, be appointed guardian for BYL. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).
3. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: the Act, s 15(3).
5. The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
6. MZL told the Tribunal that her mother, who does not speak good English, supports this proposal. Furthermore, the Tribunal accepted her evidence that she has done her best to make decisions informally for BYL until this point. She has regular contact with her brother and there is no evidence to suggest that she does not have a personality which is generally compatible with BYL's.
7. On the basis of this evidence, the Tribunal was satisfied that MZL meets the requirements to be appointed as the private guardian for BYL.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made.
2. The Tribunal decided to make an order for a period of one year.

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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: 04 May 2021