BYX [2020] NSWCATGD 47

The hearing

1. The hearing was held by telephone and the Tribunal spoke with BYX, Ms N from the Public Guardian, Ms X, Care Manager at aged care facility and Dr W, BYX's GP and the original applicant.

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 BYX 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 BYX 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 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": s 3(1) of the Guardianship Act. 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: s 3(2) of the Guardianship Act.
2. When the previous order was made, the Tribunal found that BYX has fluctuating impairment to his cognitive capacity to make important decisions, particularly regarding his health and medical care. There is no new written evidence before the Tribunal which conflicts with this.
3. BYX told the Tribunal that he no longer needs a guardian as he is able to "handle things for himself" now. He confirmed that he is happy living where he is. BYX's presentation during the hearing indicated that he was quite confused.
4. Dr W provided the Tribunal with his views in writing shortly before the hearing and also spoke to the Tribunal during the hearing. He described his dealings with BYX over the time he has known him, as well as his current situation. He said that BYX had shown good benefit from a low dose of Risperidone, prescribed by a geriatrician some months ago. [He] had helped BYX to settle into the aged care facility and also to accept proper treatment and management of his serious leg ulcer. He described BYX has lacking an understanding of his own limitations, and needs, as evidenced by his unrealistic wish to return to live in another area in regional NSW where he proposed to spend his time collecting wildflowers to sell to florists, as he had done at times in the past. Dr W described BYX as having very limited mobility and little safety awareness, making his wish to return to wildflower gathering entirely unrealistic. In his view BYX continued to be a person for whom a further guardianship order could be made.
5. Ms X confirmed that from her perspective there had not been any change to BYX's capacity to make decisions on his own behalf since the order was made.
6. The Tribunal considered an email from Ms Y, forwarded on by Dr W, in which she expresses concern about her uncle's ongoing vulnerability and asks that the guardianship order continue to ensure that he remains living in the aged care facility.
7. The Tribunal is satisfied that BYX 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 if necessary.

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 must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. The Tribunal considered a report from the Public Guardian dated 17 June 2020. The Public Guardian recommends the order continue, with the function of accommodation and medical/dental consents for at least a further 12 months. Ms N [representative of the Public Guardian] confirmed this view at the hearing. Although the Public Guardian was satisfied that BYX's accommodation at the aged care facility is suitable and meets his needs, he has indicated that he wishes to return to live in that other area of regional NSW. Options at facilities in that area of regional NSW have been investigated but none have been found which are as good as the aged care facility, and the Public Guardian considers that there is a need to ensure that there is clarity about where BYX lives. Dr W and Ms X agreed with this recommendation, and beyond expressing his view that he could make his own decisions now, BYX was not opposed to this recommendation. The Tribunal was satisfied from the evidence of BYX's situation that it was appropriate in his case to make a further guardianship order and give the guardian authority to make decisions about where he lives.
4. The order under review gives the guardian authority to call on others to give effect to accommodation decisions, for example, by authorising police or ambulance to take him to a place or return him to a place, and authorising others to keep him at a place. This is a restrictive authority which should not continue unless it is absolutely necessary. The Public Guardian did not ask for this authority to continue and there was no evidence provided that BYX tries to leave the aged care facility or is at risk of leaving and needing to be returned, and so there was no clear basis to continue to include this authority in the guardianship order.
5. In terms of health care and services, Ms N said that the Public Guardian has not been asked to make any decisions in these areas for BYX during the term of the order, and proposed that on this basis there was no need to include them in an a further order.
6. The Public Guardian noted that BYX is prescribed major medications and has no person responsible who can provide substitute consent, and that on this basis the guardianship order should include authority to consent to medical and dental treatment. The Public Guardian noted that consent has not been provided for the use of Risperidone and Valium. There has not been any information provided to indicate what condition these have been prescribed to treat and this suggests that they are being prescribed for behavioural control, which is a restrictive practice (chemical restraint), and not medical treatment.
7. The Public Guardian noted that there had been no request for the Public Guardian to consent to any restrictive practices for BYX and no behaviour support plan provided. Despite the reservations referred to above about the use of chemical restraints (Risperidone and Valium), the Public Guardian proposed that this function was no longer necessary.
8. In his letter to the Tribunal Dr W referred to the use of Risperidone as a chemical restraint. He indicates that he is not prepared to produce a behaviour support plan, because he has done this with other people in the past and the Tribunal has not accepted them. He indicates that the medication was medically warranted in BYX's case.
9. The Tribunal asked for more information about this and Dr W said that the medication was prescribed by Geriatrician, Dr V. He explained that it was prescribed to treat the personality disorder BYX has because of his brain injury, and was necessary to ensure that he did not take off his bandages in place to treat his leg ulcers. The medication has been very helpful to BYX and Dr W is reluctant to lower the dose (which is low anyway), without a review by an aged care specialist psychiatrist. Due to COVID-19 it has been very difficult to arrange an appointment, but a psychiatrist who works within the ACAT team has been identified and an appointment should be possible to do so within the next few months.
10. The Tribunal noted that medications prescribed for the purpose of influencing a person's behaviour, rather than for treatment of a diagnosed medical condition fall within the definition of a "chemical restraint" in s 4 of the Quality of Care Principles 2014 (Cth) ("the Principles"), made under the Aged Care Act 1997 (Cth). Section 15G of the Principles set out the terms and conditions with which a residential care provider must comply when using chemical restraint [footnote omitted for publication].
11. These provisions impose similar conditions to those imposed on providers funded under the National Disability Insurance scheme, who are covered by the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). In the case of HZC [2019] NSWCATGD 8, the Tribunal decided that a guardian should be appointed for a young woman with a severe intellectual disability who was a participant in the National Disability Insurance Scheme, for whom "chemical restraint" medications were prescribed. In that case the Tribunal was satisfied that medication prescribed as a chemical restraint fell outside the definition of "medical treatment" in s 33(1)(a) of the Guardianship Act and so was not something which a "person responsible" could consent to. Instead the approach taken by the Tribunal was to appoint a guardian who had authority to consent to the use of restrictive practices - chemical restraint.
12. However, based on the evidence available to the Tribunal from Dr W, the Tribunal was not persuaded that the prescription of Risperdone was primarily for the purpose of controlling BYX's behaviour, but was prescribed as treatment for behavioural symptoms of his longstanding brain injury. On this basis it would not appear to fall within the definition of a chemical restraint.
13. The Tribunal had regard to the impact of making a further order on BYX's family relationships, and considered that if anything an order would be supportive of these because of the concerns expressed by his niece. There was nothing to suggest that a further order would impact negatively on his cultural and linguistic background. The Tribunal decided on the basis of all of this evidence that a further guardianship order should be made and the guardian given authority to make decisions about BYX's accommodation and to consent to his medical and dental treatment.

Who should be appointed as the guardian?

1. The Public Guardian was appointed as BYX's guardian on the last occasion. As there is no private person available to be appointed as guardian, the Tribunal reappointed the Public 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.
2. The Tribunal decided to make an order for two years as it is likely that there will be an ongoing need for a guardian for at least this period of time. The Tribunal can review the order on request during this period, if there is a need to do so, to include, for example, authority to consent to the use of restrictive practices.

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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