BZW [2020] NSWCATGD 38

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. BZW did not participate in the hearing. Ms Z, the care manager at the aged care facility, said that she had reminded BZW of the hearing telling him it was about guardianship, his care and his medication and that his daughter was on the telephone for the hearing. However he had not understood and had become agitated and wandered away into the garden and declined to come back to the hearing room.
3. The Reasons for Decision of the Tribunal that made the order on 7 December 2017 indicate that at that time it accepted evidence that BZW had been diagnosed with a moderate to severe dementia that resulted in him having communication difficulties and as well as impaired planning and insight. The evidence before the current Tribunal was to the effect that BZW has severe cognitive impairment.
4. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.
5. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW) ("the Act"). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.
6. We were satisfied that whilst it would be the interests of BZW to participate in the hearing if he were able, his inability to effectively participate due the extent of his cognitive impairment, and the risk of distressing him, were such that the Tribunal should proceed with the hearing in his absence.

What did the Tribunal have to decide?

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

• Is BZW 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 BZW 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 Act 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": 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. 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 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 community with others."
3. As indicated above, the Tribunal has previously accepted evidence that in 2017, BZW had been diagnosed with a moderate to severe dementia.
4. An Assessment and Care Plan from a service provider - Restraint for BZW dated 11 June 2020 (the "Care Plan") indicates that he has severe cognitive impairment that results in him being confused and disoriented and lacking insight, including into his personal hygiene. He also has chronic pain that can contribute to his confusion.
5. Taking into account the previous decision of the Tribunal, the lack of any more recent evidence to the contrary, and the contents of the Care Plan, we were satisfied that BZW continues to have a cognitive impairment resulting from dementia and that as a result he is restricted in his ability to manage his person. Including making important life decisions. He is, therefore, 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, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 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. In her application HAW indicates that she has been asked by the aged care facility to sign a "restraining document".
4. The Care Plan for BZW indicates that on a number of occasions he has been aggressive towards other residents and staff and has been prescribed medication for "psychotic aggression". The use of medication for this purpose has been characterised as "chemical restraint".
5. The Care Plan also refers to his placement in a secure unit as he would be unable to find his way back if he were to leave the unit. This has been characterised as "physical restraint". During the hearing Ms Z made it clear that BZW is not able to leave the secured area of the aged care facility, though he does have access to an external area that is part of the secured area.
6. The Care Plan incorporates advice from another service provider designed to minimise the need to use restraints and includes strategies to assist BZW to communicate and to understand his environment and routine as well as to increase his enjoyment of social activities and leisure time including through music.

Regulation of the use of restraint in residential aged care services

1. Part 4A of the Quality of Care Principles 2014 (Cth) made pursuant to the Aged Care Act 1997 (Cth) specifies obligations placed on every "approved provider" of residential aged care in relation to the use of "physical restraint" and "chemical restraint" in order to ensure those measures are used only as a "last resort": the Quality of Care Principles, ss 15F and 15G.
2. The terms "restraint", "physical restraint" and "chemical restraint" are defined in s 4 of the Quality of Care Principles as follows: restraint means any practice, device or action that interferes with a consumer's ability to make a decision or restricts a consumer's free movement. chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. physical restraint means any restraint other than: (a) a chemical restraint; or (b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
3. The obligations placed on an approved provider in relation to the use of "physical restraint" are as follows: 15F Physical restraint to be used only as a last resort (1) An approved provider must not use a physical restraint in relation to a consumer unless, in relation to that use of the restraint: (a) an approved health practitioner who has day‑to‑day knowledge of the consumer has: (i) assessed the consumer as posing a risk of harm to the consumer or any other person, and as requiring the restraint; and (ii) documented the assessment, unless the use of the restraint is necessary in an emergency; and (b) alternatives to restraint have been used for the consumer to the extent possible; and (c) the alternatives to restraint that have been considered or used have been documented, unless the use of the restraint is necessary in an emergency; and (d) the restraint is the least restrictive form of restraint possible; and (e) the approved provider has the informed consent of the consumer or the consumer's representative to the use of the restraint, unless the use of the restraint is necessary in an emergency. (2) If an approved provider uses a physical restraint in relation to a consumer, the approved provider must: (a) if the restraint is used in an emergency - document the matters mentioned in subparagraph (1)(a)(ii) and paragraph (1)(c) as soon as practicable after the restraint starts to be used; and (b) if the restraint is used without the consent mentioned in paragraph (1)(e) - inform the consumer's representative as soon as practicable after the restraint starts to be used; and (c) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following: (i) the consumer's behaviours that are relevant to the need for the restraint; (ii) the alternatives to restraint that have been used (if any); (iii) the reasons the restraint is necessary; (iv) the care to be provided to the consumer in relation to the consumer's behaviour; and (d) use the restraint for the minimum time necessary; and (e) while the consumer is subject to the restraint: (i) regularly monitor the consumer for signs of distress or harm; and (ii) regularly monitor and review the necessity for the restraint. The obligations placed on an approved provider in relation to the use of "chemical restraint" are as follows: 15G Chemical restraint to be used only as a last resort (1) An approved provider must not use a chemical restraint in relation to a consumer unless: (a) a medical practitioner or nurse practitioner has assessed the consumer as requiring the restraint and has prescribed the medication the use of which is, or is involved in, the restraint; and (b) the practitioner's decision to use the restraint has been recorded in the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2; and (c) the consumer's representative is informed before the restraint is used if it is practicable to do so. Note 1: Codes of appropriate professional practice for medical practitioners and nurse practitioners provide for the practitioners to obtain informed consent before prescribing medications. Those codes are approved under the Health Practitioner Regulation National Law and are: (a) for medical practitioners - Good medical practice: a code of conduct for doctors in Australia (which in 2019 could be viewed on the website of the Medical Board of Australia (https://www.medicalboard.gov.au)); and (b) for nurse practitioners - Code of conduct for nurses (which in 2019 could be viewed on the website of the Nursing and Midwifery Board of Australia (https://www.nursingmidwiferyboard.gov.au)). Note 2: State and Territory legislation deals with who can consent to the prescribing of medication for a consumer who cannot consent because of any physical or mental incapacity. (2) If an approved provider uses a chemical restraint in relation to a consumer, the approved provider must: (a) if the consumer's representative has not been informed of the use of the restraint - inform the consumer's representative as soon as practicable after the restraint starts to be used; and (b) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following: (i) the consumer's behaviours that are relevant to the need for the restraint; (ii) the alternatives to restraint that have been used (if any); (iii) the reasons the restraint is necessary (if known by the approved provider); (iv) the information (if any) provided to the practitioner that informed the decision to prescribe the medication; and (c) while the consumer is subject to the restraint - regularly monitor the consumer for signs of distress or harm and provide information to the practitioner regarding use of the restraint.
4. In the matter of SZH [2020] NSWCATGD28 the Tribunal notes that there is nothing in the Aged Care Act or the Quality of Care Principles that is binding on the Tribunal when considering if there is a need to appoint a guardian to make decisions about restrictive practices or restraints. However, noting that applications had been made to the Tribunal as a result of the requirements noted above, the Tribunal considered, amongst other matters, the use of a keypad lock to prevent the exit of residents in aged care facilities. The Tribunal states: In relation to the use of coded keypads, the applicant drew our attention to information contained in a Regulatory Bulletin issued by the Aged Care Quality and Safety Commission entitled "Regulation of physical and chemical restraint" (Issue No. 2019-8.1 Issue Date: 11 December 2019) ("Regulatory Bulletin") as providing the basis for seeking the appointment of a guardian for SZH. This stated as follows: "7. Is the use of a coded key pad on doors to exit the facility considered a restraint? Yes. Aged care providers may require consumers to use a PIN-code to exit the home. If the PIN code is not provided to the consumer, or if they are unable to use the PIN-code for other reasons (such as poor memory, vision impairment, out of reach), this restricts their ability to leave the home. A physical environment that restricts consumers' free movement is a physical restraint. The organisation must take the steps set out in the Principles for consumers who are subject to this form of restraint. The Commission would be looking for evidence that physical restraints of an environmental nature are based on the least restrictive option. For example, for consumers who have been assessed by an approved health practitioner as requiring this type of restraint due to a risk of harm to themselves or others, has the basis for this decision been noted in their care and services plan, is the decision for this restraint transparent and is it reviewed as circumstances change. Under the Quality Standards, the service environment is expected to promote the free movement of consumers including access to outdoor areas even if for safety reasons some consumers' access or egress is restricted. Arrangements to protect consumers need to be in line with their assessed care and services plan and the least restrictive option for them."
5. Having considered submissions from parties and reviewed Caselaw the Tribunal in the SZH matter concluded the following: "Summary of principles relevant to this matter 127 Having regard to the authorities discussed above we have identified the following principles as being relevant to our consideration of this matter: (1) whether a person is restrained is a question of fact to be determined on all of the available evidence as to the person's circumstances and the nature and extent of the restraint said to be imposed upon the person's freedom of movement and liberty (Re: EUY [2019] SACAT 51 at [82]); (2) the placing of "total restraint" on the person's movement is required in order to constitute false imprisonment. That "total restraint" need bear no similarity to what might normally be described as imprisonment. Compulsion, even of the mildest kind, to remain in a place, leave only with permission and to return to the place, may nevertheless be sufficient (Darcy, [153]). Any "restraint within defined bounds which is a restraint in fact may be imprisonment": (Meering at 53-54) (emphasis added); (3) the use of force or direct physical contact is not necessary in order to establish that a person is restrained; (4) lack of fault, in the sense of absence of bad faith, is irrelevant to whether a fact finding of detention may be made; (5) it is not necessary to find that the alleged restraint is against the person's will. A finding that restraint has occurred is possible even though the person is unaware that they are being restrained; (6) it is not necessary to find that the person has expressed a desire to end the detention, has taken active steps to do so or is physically able to do so."

Physical Restraint of BZW

1. Based on the information contained in the Care Plan and the additional evidence of Ms Z, we were satisfied that BZW is restrained in the secure area of the aged care facility. We were not advised that he is aware of the restraint or that he seeks to leave the secure area. However in accordance with the principles outlined above, it is our view that BZW is subjected to physical restraint on his freedom of movement.
2. In the SZH matter, the Tribunal concluded that the restraint of the subject person could constitute the tort of false imprisonment and considered whether, in view of that circumstances, the Tribunal should exercise its discretion to provide a guardian with the authority to give or withhold consent to the restraint. Having considered the principles set out in s 4 of the Act the Tribunal decided that it should do so.
3. The principles set out in s 4 of the Act provide that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.
4. In the SZH matter the Tribunal concluded: "160 In our view, it would promote SZH's welfare and interests … for a guardian to be appointed to decide the circumstances of his restraint. Due to the impact of SZH's cognitive impairment, he is unable to give or withhold consent to the circumstances in which he is living. It is appropriate and in his interests for a guardian to have authority to do so in his stead. Providing a guardian with this authority recognises not only the fundamental importance of SZH's right to freedom of movement and liberty, but also ensures that any restriction on those rights … is properly considered by someone with the legal authority to do so in circumstances where SZH is unable to do so on his own behalf."
5. We endorse the views expressed above. It is our view that due to the extent of cognitive impairment resulting from his dementia, BZW is not able to give or withhold consent to the restraints on his freedom of movement. Consistently with the reasoning set out in the SZH matter, it is our view that the restraint imposed on BZW does restrict his freedom of action and his ability to live a normal life in the community. He is not able to consider the need for the restraint or its appropriateness. In our view it promotes his welfare and best interests to appoint a guardian who is able to access and evaluate relevant information and form a view as to whether the restraint is appropriate, and who has the authority to consent or to refuse consent to the restraint.

Chemical restraint

1. Ms Z told us that BZW had settled well into that aged care facility and anti-psychotic medication that was initially prescribed for him had been ceased. However over the past 8 to 12 months, BZW had become increasingly agitated and aggressive. After a number of incidents of aggression he was seen by Dr Y, a psychogeriatrician who had prescribed Risperidone on a regular basis to control his behaviour.
2. HAW said that she had been consulted as BZW's 'person responsible' and had consented to the use of medication to calm BZW as he had been refusing to be showered and had been attempting to leave the facility.
3. We note that BZW's medication chart lists Rixadone (risperidone) for treatment of "psychotic aggression". We were unable to speak to Dr Y or Dr X, who is BZW's General Practitioner, to obtain further evidence as to whether that treatment should be characterised as treatment of a medical condition as opposed to chemical restraint of behaviour. However taking into account the evidence of Ms Z we were satisfied, on balance, that the primary purpose of the medication is to control BZW's behaviours of concern that include aggression, and that, therefore, its purpose is to control his behaviour by chemical means.
4. We were satisfied that BZW is prescribed a major medication and that, due to his cognitive impairment, he is unable to provide informed consent for that medication. Under these circumstances we were satisfied that that there is a need for a substitute decision-maker to be able to access health care information and to make medical decisions for BZW. We considered whether there was an additional need for a guardian to consider the use of the medication as a chemical restraint.
5. As noted above, the Quality of Care Principles require that chemical restraint be used as a last resort in the context of a care and services plan that includes reference to the reasons for the restraint, alternative strategies and regular reviews of the use of the restraint. Whilst this Tribunal is not bound by those principles, in our view they are consistent with the principles set out above that are included in s 4 of the Act and are necessary considerations to promote the welfare and best interests of BZW whilst restricting his freedoms as little as possible and allowing him, as far as possible, to live a normal life. Having reached that conclusion, it was our view that where medication is used for the primary purpose of restraining the behaviour of a person, it is appropriate that a guardian be provided with the opportunity to consent or to refuse consent for the administration of the medication, taking into account the matters set out in a Care and Services/Support plan. Accordingly it was our view that in addition to authorisation to consent to medical treatment, a guardian should be appointed to consent or refuse consent to the chemical restraint, under conditions requiring consideration of the types of matters referred to in the Quality of Care Principles as being included in a Care and Services Plan.

The conditions of consent to restrictive practices

1. In our view, taking into account the restrictive nature of the decisions, consenting to physical restraint goes beyond the usual authority given to a guardian to make decisions about the accommodation of a person in an aged care facility, and, as set out in the preceding paragraph, we consider that consenting to chemical restraint goes beyond making decisions about medical treatment for the person under guardianship. Taking into account that the person under guardianship is unable to critically evaluate the appropriateness of these restraints, there is a need to ensure that consent, or refusal to consent, is based on a thorough assessment of the circumstances. For these reasons, we imposed conditions on the authority of the guardian to consent to the physical and chemical restraint. In our view, any consent needs to be premised on a condition that the restraint is used as a last resort and that it is in accordance with a Care and Support/Services plan that includes details of the behaviours being restrained and that explains alternative strategies that have been utilised including non-pharmacological strategies and that includes provision for adequate review by an appropriate medical specialist.

Family relationships and cultural environment

1. The Reasons for Decision of the Tribunal that made the guardianship order in 2017 indicate that BZW had returned to Australia after living in Europe with HAW. He had resided temporarily with a stepson but that arrangement had broken down due to his advancing dementia. The team that was treating BZW in hospital at that time had been advised that the step-son no longer wished to be considered BZW's 'person responsible'. On that occasion BZW's former spouse had supported the appointment of HAW as his guardian.
2. The Reasons for Decision of the Tribunal upon reviewing the guardianship order in December 2018 indicate that it was satisfied that HAW was BZW's 'person responsible'.
3. HAW told us that BZW has no contact from other family members or friends in Australia and that she is seeking a visa to visit him. The travel restrictions imposed by COVID-19 precautions have made it difficult for her to obtain the necessary travel permit and she would be assisted in doing so if she were appointed as BZW's guardian. She wishes to visit him to review his circumstances, including the restraints used to manage his behaviours.
4. Taking into account the matters set out in the preceding paragraphs, it was our view that making a guardianship order would be likely to promote BZW's family relationships and cultural environment by providing a recognised role for HAW, as the guardian, to make important decisions for BZW.

Who should be the guardian?

1. 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. S/he 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 Guardianship 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. HAW told us that she and her father have had a good relationship and she has remained involved in decisions about his care and medical treatment as his 'person responsible'. She has been consulted about the restraints used to manage his behaviour and is keen to ensure that those practices are reviewed and are appropriate.
7. We were satisfied that HAW meets the requirements to be appointed as the private guardian for BZW.

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. However an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. We were satisfied that as BZW's dementia has been advancing he is likely to continue to require decisions to be made about his health care and medical/dental treatment and that any restraints on his freedom will continue to require consideration by a guardian who is able to consent to, or refuse consent to, those restrictions. Accordingly we made the order for three 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: 08 March 2021