CYC [2021] NSWCATGD 11

NCAT Guardianship|2021-03-26

Background

CYC is a 34-year-old Aboriginal man with a diagnosed intellectual disability.
He was, until recently, incarcerated as a forensic patient at a correctional centre before his conditional release in accordance with orders made by the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 (NSW). Despite that conditional release, CYC remains a forensic patient, as defined under that Act.
CYC is reported to have never lived independently and to have no informal supports to assist him with decision-making.
In 2020, the Tribunal received applications from NBZ, Services and Programs Officer - Statewide Disability Services, seeking the appointment of a guardian and financial manager for CYC. The applications were made on the basis that CYC lacks decision-making capacity due to his intellectual disability and, when released from prison, would need the support of a substitute decision-maker in order to make a smooth transition from detention to living in the community.
On 19 November 2020, the Tribunal appointed the Public Guardian as guardian for CYC, and the New South Wales Trustee and Guardian as his financial manager. The decision-making functions given to the Public Guardian in the order related to CYC's accommodation, health care and services. However, as we will return to, it is apparent that the Tribunal intended to include the function of making decisions in respect of medical and dental consents for CYC.
Only six days after the orders were made, an application was received to review the guardianship order. The applicant was TZS, CYC's Mental Health Review Tribunal Case Manager. TZS sought the addition of a restrictive practices function to the order, given that the Conditional Release Order made by the Mental Health Review Tribunal on 22 October 2020 provided that CYC may live in the community only in premises where security cameras and motion sensors are employed to assist in monitoring CYC's whereabouts.

Pre-hearing directions

The Tribunal appointed a separate representative for CYC. Mr Mark Streeter took that role.
The nature of restrictive practices and the increased recognition that they need to be appropriately monitored and regulated has been a source of significant consideration by the Tribunal in recent years. So has the difficulty in ascribing consistent considerations where those practices are subject to different regulatory environments, depending on where the person about whom an order is sought is living and the nature of the services they receive. See, for example, HZC [2019] NSWCATGD 8; JFL [2020] NSWCATGD 32; OZS [2021] NSWCATGD 1; NBT [2021] NSWCATGD 2.
Given the somewhat novel issues raised by CYC's circumstances and the broader potential relevance of the application in respect of the interrelation between the Guardianship Act 1987 (NSW), the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW), the application was case managed by the head of the Guardianship Division, Deputy President Schyvens.
On 8 December 2020, the Deputy President issued the following directions to elicit the input and assistance of the parties in respect of the issues for consideration: The Applicant is directed to provide written submissions to the Tribunal, and to provide a copy to the Public Guardian and the separate representative for [CYC], on or before 22 January 2021 in relation to the following: Given the terms of the order of the Mental Health Review Tribunal dated 2 Nov 2020 (MHRT Orders), what is the utility of the Tribunal exercising the discretion under s 14(2) of the Guardianship Act 1987 to make a guardianship order for [CYC] which includes the authority to consent to the use of restrictive practices? As the Applicant has advised that the application has been made to ensure compliance with obligations upon NDIS Service Providers in the use of restrictive practices, why is it that the MHRT Orders do not amount to an "authorisation process" of the State as referred to in Rule 9 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (NDIS Rules)? With respect to the Applicant seeking a review of the current guardianship order due to the use of camera and / or other surveillance devices: (i) without the appointment of a Guardian with relevant authority, does the intended monitoring and / or surveillance breach any law of the Commonwealth of Australia or the State of NSW, and if so, please identify the relevant legislative provision(s)? and (ii) why does the intended monitoring and / or surveillance amount to a restrictive practice and what type of restrictive practice does it amount to using the definitions provided in the NDIS Rules, ie, physical, environmental, etc.? The Public Guardian and the separate representative are directed to provide any written submissions they wish to submit in reply to the Applicant's submissions to the Tribunal, and provide a copy to the Applicant and each other, on or before 5 February 2021.
The applicant and separate representative made submissions in accordance with the directions. The Public Guardian did not. Nor did the Public Guardian disseminate any other report such that the Tribunal and parties knew in advance of the hearing the decisions it has made and its views.

Review of the Guardianship Order

On reviewing the current guardianship order the Tribunal, at the request of a person entitled to make such application, may vary; suspend or revoke; confirm; or renew the order with or without variation.
The Tribunal will only vary, confirm or renew the guardianship order if satisfied that:

CYC continues to have a disability which restricts him in one or more major life activities to the relevant extent and is totally or partially incapable of managing his person (The precise legislative test was referred to in the Tribunal's reasons when making the order and, for simplicity, does not need to be repeated here); and
The Tribunal should confirm, renew or vary the guardianship order. The general principles recognise the importance of freedom of action, self-determination and independence, against which the Tribunal must balance protection from neglect, abuse and exploitation.

The Tribunal considers all relevant issues, including those listed in ss 4 and 14(2) of the Guardianship Act, before exercising its discretion.

Does CYC continue to have a disability which restricts him in one or more major life activities to the relevant extent and is he at least partially incapable of managing his person?

When the previous order was made, the Tribunal, accepting the medical and other evidence available to it, found that CYC has an intellectual disability and was unable to make some important life decisions, which warranted appointing a guardian.
The Tribunal referred to, and accepted as accurate, various reports regarding CYC which it summarised in its reasons for the decision as follows: 1. Ms Z, Psychologist, Statewide Disability Services, reports that CYC's cognitive functioning has been assessed on a number of occasions since 2004. He has consistently had results in the extremely low range of intellectual functioning consistent with a mild to moderate intellectual disability. She also states that previous assessments have indicated that CYC's adaptive behaviour skills are at the lower end of the range of mild intellectual disability. Ms Z states that in the course of psychology contact with her, CYC has demonstrated impairments in expressive and receptive communication. She states he functions on a concrete level and has difficulty understanding long sentences or questions, complex words and abstract ideas. 2. Ms Z also reports that CYC has a history of anxiety and depression. NBZ, Services and Programs Officer, Statewide Disability Services, states that CYC was assaulted in custody and sustained a severe head injury requiring surgery. At the time of the hearing it was not known whether he had suffered any permanent disability or injury as a result of the assault.
There was no new medical evidence before us in relation to CYC.
We heard from CYC at the hearing by telephone, although his participation was limited and he appeared to generally agree with whatever was put to him. It was difficult, in that circumstance for us to derive our own sense of the extent to which CYC was following the process. His presentation was, though, consistent with the reports referred to. He told us it was "hard" to make important decisions on his own, including about his accommodation, health, medical treatment, services and restrictive practices.
Each of the other parties and witnesses, as well as Mr Streeter, expressed the opinion that CYC remains someone who, because of his diagnosed intellectual disability, is restricted in one or more major life activities to the relevant extent and is at least partially incapable of managing his person. That is consistent with the findings of the Mental Health Review Tribunal that CYC cannot live in the community in a way that is safe for him and others without continuous support and restrictions on his freedom of decision making.
Based on that uncontroverted evidence, we were satisfied that CYC remains a person in need of a guardian as that term is used in the Guardianship Act.

Should we vary the order and, if so, in what way?

It is relevant to note the reasoning of the tribunal which made the current guardianship order for CYC. In its reasons, that tribunal said, relevantly: 14 Given the nature of the conditional release orders which deal with [CYC]'s accommodation and medical treatment among other things, the need for a guardian was not immediately apparent. [Ms Z] told us that, unless his term is extended, [CYC] will be released from custody in May next year. In the lead up to his release decisions will need to be made about matters such as his accommodation and ongoing support through the National Disability Insurance Scheme. In her opinion [CYC] does not have the ability to make those decisions. She also raised concerns about his capacity to give informed consent to any proposed medical treatment while he is subject to the conditional release orders. [Ms Z] said that as a result of his intellectual disability and anxiety [CYC] has a tendency to be passive and will say he understands when he does not. He also has very limited literacy. … 17 [NBZ] reports that [CYC] has been deemed suitable for Supported Independent Living funding and a property has been identified as meeting his current needs. She states that [CYC] would benefit from support and assistance to ensure that appropriate housing options are explored for his release. We also note that under the orders of the Mental Health Review Tribunal it may be possible for [CYC] to move to alternative accommodation during the term of his conditional release. 18 NBZ also reports that when in the community [CYC] had difficulties in maintaining his physical health, often forgetting to eat and take his medication. She stated that he has difficulties in following medical advice and attending appointments and his disengagement from services has been linked to his limitations in understanding. In her view [CYC] would benefit from a substitute decision-maker as his passive nature makes him an easily exploited individual where his basic needs are unable to be met. She states that he will require ongoing support to address his complex needs and assist for his transition from custody into the community. 19 Having carefully considered the matters in s 14(2) and guided by the principles set out in s 4 of the Act, we were satisfied that it was appropriate for a guardianship order to be made for [CYC] to assist his transition to the community. We decided the appointed guardian should have the functions of accommodation, health care, medical and dental consent and services. (emphasis added)
Two things arise from a review of the tribunal's reasoning, recited above.
Firstly, the tribunal was seemingly of the view that the conditional release order 'covered the field' in respect of many aspects of decisions that would otherwise need to be made by CYC, until that order expired. The Tribunal appears to have been satisfied that the issue of CYC's current, as opposed to prospective, accommodation, treatment related to the conditional release order and services were largely determined by the requirement that CYC complies with the conditional release order.

The consent to medical and dental treatment function

Secondly, the Tribunal intended to include the function of giving or withholding consent to medical or dental treatment in its order, which it appears to have inadvertently overlooked doing. Each of the parties and witnesses who commented on that issue when we raised it at the hearing agreed that it was plain that the Tribunal had intended to include that function. All who commented were in support of the order being varied to include it. For the reasons set out by the tribunal which made the order at [18], which we accept as accurate, we were satisfied we should vary the order to include that function.

The order of the Mental Health Review Tribunal

The conditional release order made on 2 November 2020 was as follows: 1. The Mental Health Review Tribunal reviewed [CYC] on 22 October 2020. 2. After the Review, the Tribunal ordered that [CYC] be released, subject to the following conditions. Discharge and release 1. [CYC] is to be released and discharged from [a correctional centre] no later than 30 November 2020 unless security cameras have not been installed at [Address removed for publication.], and funding remains unconfirmed, in which case, his Case Manager is to advise the Tribunal. Case Manager 2. [CYC] accepts [TZS] or her delegate of the Community Safety Program as his case manager. He shall be managed by the case manager in accordance with the NSW Ministry of Health Guidelines for Forensic and Correctional Patient Ground Access, Leave, Handover, Transfer, and Release (PD2012_50). 3. [CYC] shall meet with his case manager, at his home or a place as determined by the case manager. The case manager will decide how often these meetings will take place, and where they are to take place. 4. [CYC] is to participate in any education, training, rehabilitation, recreational, therapeutic, or other programmes which his case manager asks him to attend. 5. CYC must attend a mental health facility if directed to do so by his case manager or psychiatrist. NB A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007. 6. The case manager may nominate a delegate to act as case manager in his or her place from time to time. Psychiatrist 7. [CYC] accept [Dr Y] or delegate as his treating psychiatrist. He shall be managed by the treating psychiatrist in accordance with the NSW Ministry of Health Guidelines for Forensic and Correctional Patient Ground Access, Leave, Handover, Transfer, and Release (PD2012_50). He shall also accept [Ms X] as his psychologist and meet with her as directed. 8. [CYC] shall meet the treating psychiatrist as directed by the treating psychiatrist. The treating psychiatrist will decide where and how often the meetings will take place. 9. [CYC] is to accept the medication and other treatment prescribed by his treating psychiatrist including any antilibidinal medications. He shall take the medication in the way prescribed by the treating psychiatrist. 10. If the psychiatrist is concerned about [CYC]'s mental state, the psychiatrist may direct him to attend a mental health facility and seek admission to that facility as a voluntary patient. [CYC] must immediately comply with that direction. NB A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007. 11. The treating psychiatrist may nominate a delegate to act as treating psychiatrist from time to time. General Practitioner 12. [CYC] accepts [Dr W] or their delegate of [a medical centre] as their general practitioner. The general practitioner is not to change medication without consultation with [CYC]'s treating psychiatrist. Drugs and Alcohol 13. The only mind- or mood-altering drugs that [CYC] is to consume are those prescribed by the treating psychiatrist or regular registered medical practitioner. 14. [CYC] must not take any illegal drugs or substances (or legal synthetic versions of illegal drugs). 15. [CYC] must not consume any alcohol. 16. [CYC must promptly submit to any test for the detection of the use of drugs and substances including alcohol as shall be requested from time to time by [CYC]'s case manager. These tests may be administered randomly, at the discretion of the case manager. Accommodation 17. [CYC] is to live at [Address removed for publication]. If he wishes to live at another address, his case manager must first agree that the alternative accommodation is appropriate, or [CYC] must first obtain approval from the Tribunal at a review hearing. 18. [CYC] must notify his case manager of his current residential address and telephone number. 19. If [CYC] changes accommodation or telephone number, the case manager will notify the Tribunal of the change to residential address. 20. [CYC] must not travel interstate or overseas without the Tribunal's approval. This approval can be granted in writing by the President or a Deputy President of the Tribunal. 21. [CYC] cannot leave the accommodation without the approval of [Mr V] of [a disability service provider] or his delegate or an employee of [that service provider] or person retained by [that service provider] to provide [CYC] support at the [Street name removed for publication.] property. Conduct 22. [CYC] must not engage in unlawful conduct or conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be, seriously endangered. Other conditions 23. [CYC] to provide his case manager with a recent (head and shoulders) photograph of a quality acceptable to the case manager. Alternatively, he must co-operate while the case manager or delegate takes a photograph of him. The case manager is to provide a copy of the photograph to the Tribunal. 24. [CYC] must attend Mental Health Review Tribunal reviews according to arrangements as notified in advance to him. 25. [CYC] shall allow the sharing of information about his treatment, progress and management between associated teams, his treating psychiatrist and any other person or persons providing health care, management and support services. 26. [CYC] shall accept support and remain in the company of support staff, case manager (or delegate) when accessing the community at all times, except when [CYC] uses private amenities such, as whilst using a toilet or showering. 27. [CYC] is not to have access to communication devices and all telephone calls will be in the company of staff except if the call is with [CYC]'s legal representatives. 28. [CYC is not to have access to the internet by any means. Non-association requirements 29. [CYC] shall not associate with children. 30. [CYC] must not associate with any person under the age of 18 years. 31. [CYC] shall not contact or associate with [redacted]. 32. [CYC] shall not contact or communicate or attempt to initiate any communication, in any way, or through any medium, with [redacted]. 33. [CYC] is to remain away from the following places: (a) childcare centres, pre-schools and schools; (b) children's playgrounds and any area with play equipment for use by children; (c) amusement parlours, amusement parks and theme parks; and (d) pools, playing fields and sporting facilities. 3. These orders were made under sections 46, 47 and 75 of the Mental Health (Forensic Provisions) Act 1990.

The submissions received

As the primary focus of the application was the applicant's request that the Tribunal vary the order to add the function of making decisions about restrictive practices in the nature of environmental restraint, and the parties were asked to turn their minds specifically to various relevant issues raised by the Deputy President in directions, it is useful to set out the detailed submissions of the separate representative, in full. In response to the directions, Mr Streeter made the following submissions (which we have renumbered after removing background information): 1. The Notes to r 9 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth) ("NDIS Rules") provide that an "authorisation process" 'may' be: 'a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer'. 2. As such, the NDIS Rules clearly contemplate that authorisation through an administrative tribunal like the Mental Health Review Tribunal ('MHRT') or a process stipulated by the Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFPA") may constitute an "authorisation process". 3. When making an order for the conditional release of a forensic patient, the MHRT will evaluate evidence from medical professionals, the subject and the subject's case manager pursuant to s 43 of the MHFPA. The comprehensive nature of this assessment employed by the MHRT delineates the authority that should be attached to MHRT orders. 4. MHRT orders remove individuals from custody like CYC who exhibit criminogenic needs and psychosocial deficits, and through breach of these orders via s 68 of the MHFPA have the capacity to further incarcerate subjects. Such drastic implications effected by such an order further illustrate the authority which the law assigns to MHRT orders. 5. Moreover, the conditions that may be imposed by the MHRT are governed by s 75 of the MHFPA. Thus, the resulting "restrictive practice" that may arise from conditions enforced by the MHRT are to some extent governed by statute and the case law that follows. 6. Since there is scope within r 9 of the NDIS Rules for the approval of restrictive practices by the MHRT to constitute an "authorisation process" and MHRT orders are authoritative in the manner they are formed and regulated, they amount to an "authorisation process" as referred to in r 9(2)(a) of the NDIS Rules. 7. The MHRT Orders do not authorise the use of monitoring devices in relation to CYC. 8. Rule 9(2) of the NDIS Rules provide: 9 Use of a regulated restrictive practice in a State or Territory with an authorisation process … (2) The registration of the registered NDIS provider is subject to the following conditions: (a) the use (other than a single emergency use) of the regulated restrictive practice in relation to the person with disability must be authorised in accordance with the authorisation process; (b) the provider must lodge with the Commissioner evidence that the use is so authorised as soon as reasonably practical be after the use of the practice in relation to the person. 1. Although MHRT orders may constitute an "authorisation process" within r 9(2)(a) of the NDIS Rules, monitoring CYC via surveillance cameras and sensors were not an 'authorised' restrictive practice within the MHRT Orders for Conditional Release of CYC. 2. On page 25 of the BSP [behaviour support plan], Condition 1 within the MHRT Order for Conditional Release of CYC requires that CYC: "is to be released and discharged from [a correctional centre] no later than 30 November 2020 unless security cameras have not been installed at [Address removed for publication]." 1. Rather than any express authorisation that monitoring devices may be used in relation to CYC, the condition functions as a negative requirement that CYC is not to be released until monitoring devices are installed in his Proposed Community Placement at the Residence. As a matter of construction, the form of this order does not provide a positive authority but rather a restriction and condition precedent to his release from the Correctional facility. 2. Therefore, despite the potential for an MHRT order to be an authorisation process, the form of the relevant orders does not act as an authority for the relevant restrictive practice of using monitoring devices in relation to CYC pursuant to the requirement in r 9(2)(a) of the NDIS Rules. Utility of Tribunal making a Guardianship Order 1. Since the MHRT Orders do not authorise the restrictive practice of using monitoring devices in relation to CYC and the Guardian remains void of the restrictive practice function, the implementation of camera and motion sensor devices as an environmental restraint will constitute a prohibited practice within s 3.2(f) of the Restrictive Practices Authorisation Policy 2019 (NSW) and defy r 9(2)(a) of the NDIS Rules. 2. The Protocol for Monitoring Sensors and Cameras and MHRT Order for Conditional Release at pages 37-8 and page 25 of the BSP respectively each identify the monitoring devices as necessary for the implementation of CYC's conditional release given the danger CYC has exhibited on prior occasions of unsupervised community access to himself and the community. For example, the BSP notes that victims of CYC's abusive behaviours toward children occur when he is unsupervised. The BSP provides that the monitoring devices serve to alert staff where CYC leaves the property so that they can encourage CYC to return to the property and thereby prevent CYC from entering the community unsupervised. 3. This ensures that CYC is 'restricted as little as possible' and prioritises CYC's welfare pursuant to ss 4(a) and 4(b) of the Guardianship Act as it avoids the risks associated with unsupervised access to the community whilst preventing CYC from being contained in a locked facility in the community. 4. Further, a Guardianship Order is necessary to avoid any potential liability parties may suffer by contravening prohibitions in the Surveillance Devices Act 2007 (NSW) - see paragraph [(20)]. 5. Therefore, it is vital the Tribunal exercise discretion under s 14(2) of the Guardianship Act to grant the Guardian for CYC the restrictive practice function so that both the safety of the community and the interests of CYC are prioritised. Intended monitoring amounts to an environmental restraint 1. Rule 6(e) of the NDIS Rules stipulates that an environmental restraint is one which: 'restrict(s) a person's free access to all parts of their environment, including items or activities'. 2. Page 37 of the BSP states that the intended monitoring and surveillance of CYC consists of sensors at the entry and exit points of the property, at CYC's bedroom window and bedroom door (night-time only) and cameras at the front of the property facing the driveway and carport. When sensors or cameras note CYC has exited the property, staff are trained to 'offer support' to CYC and remind him of the conditions on his order thereby encouraging CYC to return to the property. Further, should CYC continue to leave, an incident report is submitted to CYC's case manager and the MHRT. 3. Particularly given that CYC is intellectually disabled and reports difficulty with decision making, these actions of staff effectively guide CYC into remaining within the property and subsequently restrict CYC's access to his surrounding environment which may breach the terms of his release. As such, the intended monitoring is necessarily an environmental restraint as it functions to restrict CYC's movement outside the Residence. Intended monitoring breaches Surveillance Devices Act 2007 (NSW) 1. Section 8 of the Surveillance Devices Act provides: 8 Installation, use and maintenance of optical surveillance devices without consent (1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves- (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or (b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object. Maximum penalty-500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). 1. This prohibition may be breached by the installation of cameras at the Residence in the front of the property, facing the driveway and carport as provided in the Transition Plan on page 9. Whether this prohibition is breached will turn on whether CYC gave implied or express consent for the use of these optical surveillance devices. This risk will be eliminated if the Public Guardian has a function and authority as requested and can provide consent to the facility manager on CYC's behalf. 2. Section 9 of the Surveillance Devices Act provides: 9 Prohibition on installation, use and maintenance of tracking devices (1) A person must not knowingly install, use or maintain a tracking device to determine the geographical location of- (a) a person-without the express or implied consent of that person… … Maximum penalty-500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). 1. Further s 4 of the [Surveillance Devices Act] defines a tracking device as 'any electronic device capable of being used to determine or monitor the geographical location of a person or an object'. Page 37 of the BSP provides that sensors are 'to be installed on the entry and exit points of the property, CYC's bedroom window and bedroom door (night-time only)', which when triggered by CYC will cause a message to be received on the house mobile retained by staff. As such, the motion sensor serves as an electronic device employed by staff to monitor the location of CYC. Whether this prohibition is breached will turn on whether CYC gave implied or express consent for the use of these optical surveillance devices. This risk will be eliminated if the Public Guardian has a function and authority as requested and can provide consent to the facility manager on CYC's behalf. 2. Section 12 of the Surveillance Devices Act provides: 12 Possession of record of private conversation or activity (1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part. Maximum penalty-500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply where the record is in the possession of the person- […] (b) with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity 1. Where recordings from the security cameras of CYC are retained, the possessor of these recordings may be in contravention of s 12(1). Whether this prohibition is breached will turn on whether CYC gave implied or express consent for the use of these optical surveillance devices. This risk will be eliminated if the Public Guardian has a function and authority as requested and can provide consent to the facility manager on CYC's behalf. VIEWS AND SECTION 4 PRINCIPLES 1. The relevant principles from s 4 of the Guardianship Act are: 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. 1. The Tribunal must balance the tension particularly between the first principle of best interests against the second principle of being the least restrictive option for giving effect to the first principle. 2. The writer spoke with CYC on Tuesday 23 February 2021 at 9am by telephone which was facilitated by the [support worker]. I explained to CYC that I was the solicitor acting in respect of an application by the Public Guardian which sought a restrictive order permitting surveillance and monitoring devices at the Residence and asked his views about this. He said "I agree". 1. I asked if the option were to be back in a Correctional Facility or in the current environment with surveillance and devices, I asked him if he would prefer where he was and he replied "Yes, I prefer where I am." 2. I noted that some of the notes had that CYC had a hearing restriction but CYC seemed to be able to answer me on the phone without any difficulty. 3. It is worthy of reflection on the third principle which encourages those with disabilities to be living in the community as the current arrangement facilitates. The fourth principle encourages the views of the concerned person to be considered and in this case they are unequivocally supportive of the orders sought in this application. 4. The surveillance and monitoring at the Residence will also protect the concerned person from misadventure and allow proactive intervention by support workers to intercept the resident from a behaviour that may breach the terms of their continued stay in the in this community based location. CONCLUSION 1. The Tribunal should make the orders sought by the Public Guardian with a restrictive practice function so that the implementation of camera and motion sensor devices does not constitute a prohibited practice and the welfare and interests of CYC are respected and the conditions of CYC's release are complied with and his continued residence at the Residence is maintained.
The submissions of the applicant were, relevantly, as follows: I understand that section 4.6 of the NSW Restrictive Practices Authorisation Policy dated June 2019 provides that lawful orders are considered an 'authorised' restrictive practice for the purpose of the policy. [CYC]'s current conditional release order under the Mental Health Review Tribunal (MHRT) provide legal authorisation for a set of restrictive practices imposed on [CYC] (e.g., not to access areas frequented by children or to associated with them, not to consume alcohol, not to associate with [CYC], not to access internet or communication devices without supervision, to remain in the company of staff when in the community and not to leave property (sic) without staff, to accept medication including antilibidinal). However, the monitoring devices sits outside of [CYC] (e.g., staff implementation) and is not a condition of his current order. The monitoring devices' (i.e., camera and motion sensors) use and intended purpose constitutes environmental restraint (section 3.1e) of the NSW Restrictive Practices Authorisation Policy dated June 2019, and NDIS Restrictive Practices and Behaviour Support Rules 2018. The associated response strategies that staff implement with [CYC] has the effect of restricting his access to the community. For instance, if [CYC] is observed to leave the placement, staff's response strategy is to engage and support [CYC] to meet his needs (e.g., encourage [CYC] to return to the property, assist him to better understand his conditions, problem-solve situation). Should [CYC] continue to leave, an incident report is submitted to [CYC]'s case manager and the MHRT. The monitoring devices were deemed clinically necessary for the practical implementation of the conditions imposed on [CYC] (e.g. not to leave property without staff) and mitigating risk of behaviours of concern associated with unsupervised community access. This is in the context of [CYC]'s criminogenic needs and psychosocial deficits. These devices represent efforts to ensure the least restrictive option is implemented compared to other more restrictive alternatives (e.g., placement in a secure or locked facility in the community). Furthermore, the purpose of referral to the Restrictive Practice Authorisation (RPA) panel may assist to ensure that due consideration is given to how the restrictions set out in the lawful order are integrated into the participant's behaviour support plan and implemented (NSW Restrictive Practices Authorisation Procedural Guide. June 2019). Without the appointment of Guardian with the restrictive practice function, the implementation of camera and motion sensor devices for its intended purpose (i.e., environmental restraint) constitutes prohibited practices (s 3.2 f) of the NSW Restrictive Practices Authorisation Policy dated June 2019, and NDIS Restrictive Practices and Behaviour Support Rules 2018. The monitoring devices have been installed, however to date, [CYC] has not exhibited any behaviours of concern that has required the use of the response strategies associated with the monitoring devices. [CYC] transitioned to the 24/7 supported accommodation on 30 November 2020 and has been reported to be compliant with his conditions.
At the outset of our discussion of these issues, the Public Guardian's representative made a submission that there was no reason to vary the order other than by adding the medical and dental consent function. Unfortunately, as it became clear, that submission was made without the benefit of having prepared written submissions in advance of the hearing and without the advantage of having read the extensive submissions of the separate representative. We gave the Public Guardian's representative the opportunity to read the separate representative's submissions during the hearing. No adjournment was sought or prejudice asserted by the Public Guardian. There was no suggestion that she did not have the submission well before the hearing. Rather, she had not read them. We saw no reason to adjourn or offer the Public Guardian an opportunity to seek an adjournment in those circumstances, particularly where the hearing had already been delayed to allow the parties to make written submissions and consider their positions.
By the end of the hearing, the Public Guardian's submissions were consistent with the others received, i.e. that we should vary the order to insert the function of restrictive practices in the nature of environmental restraint. The Public Guardian couched her submission in terms of the nature of the environmental restraint; being preventing CYC's free access to his environment unsupervised. As regards the use of surveillance devices, the Public Guardian's representative submitted that she "did not know what her department (sic) would make of the monitoring devices and cameras as they are just another device for the staff".

Further evidence at the hearing

Against the backdrop of those submissions, we should record the further uncontroverted evidence we had available or took at the hearing, largely from TZS and Mr U, TZS's team leader. The Public Guardian's representative was not CYC's appointed guardian of longstanding and had not met or spoken with him.
We had an interim behaviour support plan prepared for CYC. It opined that there were three restrictive practices proposed or used in supporting CYC.
The first concerned the potential use of chemical restraint with CYC, in the event that he is prescribed anti-libidinal medication to control his behaviours of concern.
The second was described as Environmental Restrictive Practice 1, and related to the restriction of CYC's access to the internet and communication devices.
The third was described as Environmental Restrictive Practice 2, and related to the use of the surveillance devices.
The oral evidence included confirmation that the relevant surveillance devices were installed at the premises before CYC moved there. On that basis, of course, they have been used for the last approximately four months.
There had been no assessment of CYC's ability to give informed consent to the use of the surveillance devices. Neither Mr U nor TZS had specifically considered or explored with CYC his ability to give his own consent to the use of the surveillance devices. CYC did not respond to our questions about the devices. We were unclear whether that was due to nervousness or an inability to understand the use of those devices. Mr Streeter was concerned, on the basis of his telephone discussion with CYC, that the "Public Guardian could have no confidence" that CYC could give consent to the use of those devices.
CYC has not yet been assessed as benefitting from anti-libidinal medication, and none is prescribed. CYC is prescribed Duloxetine and Quetiapine, referred to in his BSP as being for "mood' and 'sleep' respectively. There was no evidence that they were used for behaviour control, and they are prescribed for use on a daily, rather than PRN basis, which may indicate that they are to treat a condition. Mr U and TZS's position, consistent with Mr Streeter's submission, was that there was no utility in including a chemical restraint aspect of a restrictive practices function at this time, and did not press that.

Decision

We were satisfied that we should also vary the order to add the function of making decisions about restrictive practices in the form of environmental restraint. As submitted by the parties, we also saw the benefit of varying the order so that it continues for 12 months from today. There is still, clearly, much to be done in respect of CYC's re-integration into the community, and we were satisfied that extending the period of the order in that way would best promote his welfare and interests.
Shortly put, we were satisfied that the restriction of CYC's access to the internet and telephones unsupervised and of his ability to access the community without supervision, at least, constitute an environmental restraint. Furthermore, after CYC ceases to be a forensic patient, if it is proposed that those practices continue (and it seems that it is), a substitute decision-maker will certainly be required to give consent to that. This is the case even if, contrary to our view for reasons discussed below, it is not required now. It is apparent from the decision of the MHRT to add those conditions to CYC's order that he has a history of being unable to manage decisions about those issues himself, in a way that maintains his safety and that of others in the community.

Other issues

Having made the order sought by all of the parties who commented on those issues, there is arguably no basis for us to record anything further. The Tribunal's role is not to provide advice but rather to determine applications before it in accordance with the statutory provisions of the Guardianship Act.
However in the circumstances of this matter, we think it appropriate to make some other observations, not least so that it is not thought that by making the order sought, we accepted each of the submissions we received as accurate.
We must make it plain that it is not the role or within the jurisdiction of the Tribunal to determine whether a service provider registered through the NDIS has complied with the requirement that the authorisation process as defined in the NDIS Rules has been met before restrictive practices are used. That is an issue within the purview of the NDIS Quality and Safeguards Commission. Nor is it the role of the Tribunal to determine whether a breach of the Surveillance Devices Act has occurred, which is a matter for the courts.
We are, though, required to make this decision in a way which promotes the welfare and interests of CYC. In our view, within the constraints of the issues just raised, we think it appropriate to record in these reasons some areas where we do not agree with the submissions made, to ensure that our order is not misunderstood or taken to extend beyond its intended bounds.
For the benefit of the parties, we should clarify, by example, two concepts we intend to refer to in terms of 'regulatory compliance' and 'consent'. Those issues interact and overlap in many aspects of day to day experience. For an example, we refer to the process of medication being administered to a patient by a doctor.
For that process to be lawful, the issues of both regulatory compliance and consent must be considered, i.e.: 1. The doctor must be registered to practice and the medication approved for use (regulatory compliance); and 2. The patient must consent (consent).
Broken into these constituent elements, it is clear that the same process would apply to many issues relevant to this application, including the provision of services to CYC by a NDIS registered service provider using restrictive practices.
Of course, it is a basic tenet of the Guardianship Act that if a person cannot give their own consent meaningfully, that consent must usually be provided by a substitute decision-maker, commonly in the form of a guardian.
It is, though, possible for the legislature to pass laws which remove the need for consent: see, for example, the provisions for involuntary treatment of patients in the Mental Health Act and s 37 of the Guardianship Act, which allow for medical treatment to be administered without consent in limited circumstances. It is also possible for the issues of regulatory compliance and consent to be dealt with within one piece of legislation.

Does the conditional release order affecting CYC remove the need for consent for issues such as medical treatment or certain services to be provided to him?

The submissions of the separate representative and, as we comprehend them, of the applicant both proceed on the basis that the nature of the order of the Mental Health Review Tribunal 'covers the field' in respect of decisions about CYC's accommodation, treatment specifically contemplated by the order and certain services he receives.
It is not apparent to us, however, that this is correct. The conditional release order under the Mental Health (Forensic Provisions) Act seems to be unlike the effect of an involuntary treatment order under the Mental Health Act. The order would appear to require CYC to make certain decisions to comply with the order on an ongoing basis i.e. consent to comply. The consequence of a failure to give consent does not appear to be that doctors or service providers are entitled to proceed in the absence of consent but, rather, that CYC's conditional release may be revoked or that he may be made subject to involuntary treatment. If that interpretation is correct, then the conditions of the conditional release order require CYC's initial or ongoing consent, or that of an appointed substitute decision-maker.
For that reason, it is not our view that the appointment of the Public Guardian relates primarily to issues surrounding CYC's circumstances around the end of the conditional release order, but that the Public Guardian may have pressing obligations now, to make decisions for CYC.
For example, we were told that each of CYC's psychotropic medications were prescribed prior to his conditional release. It may be (but we express no view in this regard) that at that time his consent to have those medications administered was not required. That would not necessarily indicate, however, that ongoing consent from the Public Guardian is not required now. Similarly, under the health care function, the Public Guardian may need to consent to CYC being treated by Dr Y, despite the terms of the conditional release order.

Does the conditional release order constitute compliance with the requirement for an authorisation process in the use of restrictive practices with CYC?

Again, the submission of the separate representative was that, other than in respect of the use of cameras and motion sensors (which were dealt with separately due to the specific terms of the order) the conditional release order fully constituted the authorisation process required for the provision of services to CYC which included restrictive practices by service providers under the NDIS Rules.
We agree with the separate representative that the terms of the order do not authorise the use of cameras or motion sensors. Further, we agree that the conditional release order may fully meet the need for regulatory compliance in respect of the other environmental restraints.
We also have no doubt that, in appropriate circumstances, an order of another Tribunal or Court may be capable of fully constituting the authorisation process. However the authorisation process appears to us to be implicitly directed to encompassing both the concepts of regulatory compliance and consent. If that proposition is accepted and our view about the nature of the conditional release order is correct, then the order would be unlikely to fully constitute the authorisation process, as the need for consent would not have been met.
The consequence of this is the basis for our decision to include the function of making decisions about restrictive practices in the varied order. At the least, we think a guardian's consent is required for the ongoing restriction of CYC's access to telephones and the internet, and the process of support staff remaining with him in the community and encouraging him to return to his accommodation should he attempt to leave unsupervised.

Are the use of video cameras and motion sensors a restrictive practice in the form of an environmental restraint? Could that use otherwise constitute a breach of the Surveillance Devices Act?

The separate representative and applicant are of the view that the use of these devices constitutes an environmental restraint, such that obtaining the consent of the Public Guardian under the order as varied by us will ensure that the requirement for an authorisation process can be met. As we understand it, it is common ground between them that the conditional release order is not part of that process and that it will need to be met through the consent of the Public Guardian and the regulatory compliance available to the service provider by having the practice approved by the Restrictive Practices Authorisation Panel as constituted in New South Wales. In the separate representative's view, this will also ensure that the requirements of the Surveillance Devices Act ("SDA") are met, in that consent to the practice will also constitute consent to the use of the devices, which would otherwise be unlawful.
Unfortunately, there are several complicating issues around this aspect of the matter in our view.
We would firstly record that the objects of the SDA, as set out in s 2a, are as follows: 2A Objects of Act The objects of this Act are - (a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and (b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and (c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
It is clear, despite the focus of objects 2A(a) and (b), that the SDA is applicable to private individuals, as opposed to solely law enforcement officials. This is consistent with the unequivocal wording of various sections of the SDA which regulate the conduct of "a person": see, for example, Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133.
We agree with the separate representative that the camera is capable of meeting the definition of an optical surveillance device in the SDA. We note, though, that the evidence and submissions did not go to the questions of whether the camera has been installed or is used without the "express or implied consent of the owner or occupier of the premises" as referred to in s 8 of the SDA. In our view, the only inference to be drawn from the terms of the conditional release order is that the camera was installed before CYC became an occupier of the premises and was presumably installed and is used with the consent of the owner. The parties should consider whether that is sufficient in the circumstances. In other words, does compliance with s 8 of the SDA require the consent of each occupier, even if the owner's consent has been obtained?
Similarly, whilst the consent of CYC or his substitute decision-maker may be required for the use of a tracking device as set out in s 9 of the SDA to "to determine the geographical location" of CYC, on one view that is not the purpose of the motion sensors. The geographical location of CYC when the devices are activated is known; he is within the home. Whilst the tripping of the sensor would allow someone to infer that CYC intends to go to another location, it would not 'track' him in any relevant sense. The submissions did not address in detail whether the motion sensors are "tracking devices", defined in the SDA as "any electronic device capable of being used to determine or monitor the geographical location of a person or an object". It may be that they are capable of doing so, even if not actually used for that purpose. Again, we think that these are issues the parties should consider.
We were also given no evidence as to whether the cameras produce a recording, relevant to the terms of s 12 of the SDA.
As to whether the use of the devices is likely to meet the definition of environmental restraint under the NDIS Rules, we do not share view of the Separate Representative that this is necessarily the case simply because the devices are used in the process of facilitating other environmental restraints in restricting CYC's free access to the community.
In our view, with due respect to the separate representative's thoughtful and detailed submissions, the issue may need to be approached on a more nuanced basis.
We note the definition of environmental restraint in the NDIS Rules as that: "…which restrict[s] a person's free access to all parts of their environment, including items or activities"
In order to determine whether the use of the devices is an environmental restraint, it may be necessary to consider whether the use of the devices, in and of itself, creates an impediment to CYC's free access to his environment. Here, the evidence was equivocal. On the present state of the evidence we infer that the NDIS registered service providers are engaging in a "practice" of turning on the motion sensors on a nightly basis. Certainly, CYC knows of the devices and their purpose has been explained to him. TZS's evidence was that CYC has not attempted to leave his dwelling without permission whilst they have been in use. This may indicate that the devices, by their very presence and the practice of them being turned on each night, have the effect of restricting CYC's free access to all parts of his environment because CYC understands the nature of the devices and the consequences of triggering the motion sensor or being observed on the camera. Therefore, their use may constitute an environmental restraint if their presence causes CYC to consciously avoid that result. If, on the other hand, CYC gives no ongoing thought to the existence of the devices, then their use may not constitute environmental restraint. On the evidence available to us, it does not appear that this has been explored. In any event, though, the terms of the order as varied by us does not limit the types of environmental restraint to which the guardian may consent.
In EZC [2020] NSWCATGD 60, a differently constituted Tribunal found, at [26] that the use of a camera, in the context of the application before it was not an environmental restraint. It determined that "it does not comprise such a practice as it does not restrict EZC's access to all parts of his environment or restrict or subdue his behaviour. However we were of the view that as the use of the camera impacts on EZC's privacy, there is a need for a guardian to consider whether its use is justified for protecting EZC's health and safety". The Tribunal went on to make an order authorising a guardian to "make decisions about the use of a non-recording security camera for the health and safety of EZC".
An order to similar effect was made in KZF [2020] NSWCATGD 61 where, at [27] the Tribunal found "[w]e were not satisfied that the use of the camera constitutes environmental restraint, or fell into any other restrictive practice defined by the [NDIS] Rules. KZF's freedom of movement or behaviour is not impacted in any sense by the use of the camera."
We acknowledge that, in light of this, it would have been open to us to simply include a function in the varied order in terms of giving the Public Guardian the additional function of, for example, "considering consent to the use of cameras and motion sensors to monitor the whereabouts of CYC".
We were not satisfied, however, that doing so now would better promote CYC's welfare and interests or otherwise meet our obligations under the Guardianship Act.
There are several reasons for this.
Firstly, if the use of the devices is an environmental restraint in CYC's particular circumstances, for the reasons discussed above, then the varied order may meet all of CYC's current needs for substitute decision-making.
Secondly, the application of the SDA, and specifically ss 8, 9 and 12 of that Act is not clear on the evidence, for the reasons set out above.
Thirdly, on the evidence before us, we are unable to determine that CYC is unable to consent to the use of the devices himself meaningfully. There is certainly a possibility that is the case, and we note Mr Streeter's submission in this regard. But, with respect, that issue should be explored further than the opportunity Mr Streeter had to do so. Preferably, that should be done by someone suitably qualified, who is able to discuss the issue with CYC in person. The issue is a relatively simple one, and CYC has already expressed his willingness to consent. It would not be consistent with the general principle that we restrict the freedom of decision and freedom of action of CYC as little as possible to give a guardian this function without any evidence about whether the consent CYC appears to have given was given meaningfully. We can also only infer that the Public Guardian, neither having proposed to change CYC's accommodation under the original order which allowed her to make accommodation decisions, nor having sought any variation to the order, has no concerns as to the lawfulness of the use of the devices in the support of CYC.
Fourthly, giving a function to a guardian which is not sought and to which the guardian has not turned its mind would not, in our view, best promote the welfare and interests of CYC because the guardian may not then turn its mind to the proper nature of that order and how it might be exercised.
There was not enough time available in the hearing to put these considerations before the parties for comment. Nor, given the history of the matter, would we expect them to properly do so within the constraints of the hearing process, even if more time had been available.
We saw no advantage in adjourning the hearing, given that it had already been delayed to allow the parties to prepare to deal with the relevant issues and where CYC was in need of the immediate appointment of a guardian with the varied functions. In our view, the best course was to vary the order as requested and give the parties the further opportunity to review their positions on receipt of these reasons.
We acknowledge that it may be that this leads to a further application to vary the order, but that is not a certainty and if it is required it will, in our view, inconvenience the parties no more than the other option of adjourning for them to consider these issues at a later date. It may also be that the parties will need to return to the Tribunal in any event, if CYC is prescribed anti-libidinal medication in the nature of androgen reducing medication for the purpose of behavioural control. If that occurs, unless the conditional release order obviates the need for consent, then the medication may only be lawfully administered if consent to experimental special medical treatment is obtained from this Tribunal pursuant to s 45(3) of the Guardianship Act. Similarly, if it is determined that the psychotropic medications prescribed for CYC are primary for the purpose of influencing his behaviour and not to treat, or to enable treatment of, a diagnosed mental disorder, physical illness or a physical condition, or he is prescribed another form of anti-libidinal, then the order may need to be varied to include chemical restraint as a decision-making function.
Given CYC's particularly complex circumstances, the parties will need to deal with these issues as and when they arise.

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

Amendments 20 August 2021 - At [76], start of the last sentence: from 'We can also only infer from the Public Guardian' to 'We can also only infer that the Public Guardian,' 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: 20 August 2021

(NSW), Mental Health Act 2007(NSW)

(NSW), Mental Health (Forensic Provisions) Act 1990(NSW)

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018(Cth)

Mental Health (Forensic Provisions) Act 1990(NSW)

(NSW), the Mental Health Act 2007(NSW)

ctive Practices Authorisation Policy 2019 (NSW), s 3.2(f) Surveillance Devices Act 2007 (NSW), ss 8, 9, 12 Cases Cited: EZC [2020] NSWCATGD 60 HZC [2019] NSWCATGD 8 JFL [2020] NSWCATGD 32 KZF [2020] NSWCATGD 61 NBT [2021] NSWCATGD 2 OZS [2021] NSWCATGD 1; Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Texts Cited: Nil Category: Principal judgment Parties: 004: Requested Review of Guardianship Order

At a glance

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Judgment (16 paragraphs)

Legislation Cited (9)

Cases Cited (7)