DZM [2020] NSWCATGD 66

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

The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
The Tribunal was given an appointed guardian's statement from DZM's parents. They refer to the various decisions that they have made for their son in the last year, including his move to supported accommodation from the family home, the change to his National Disability Insurance Scheme (NDIS) funding to cover the cost of his SIL accommodation, decisions about his health care, including speech pathology, occupational therapy, behavioural therapy and podiatry, his medical and dental treatment, support coordination and his day program. They indicate on this form their belief that the guardianship order includes functions of accommodation, services, health care and medical/dental treatment even though the order only includes the authority to consent to the use of restrictive practices. At the hearing TAM said that they had been under this impression, but that they now realise the order only included authority to consent to the use of restrictive practices. They asked that the order be renewed and varied to include all possible kinds of decisions.
Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguarding Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices.
Registered NDIS providers and behavioural support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) ("the Rules"), which commenced on 1 July 2018. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6): 1. seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted; 2. chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition; 3. mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes; 4. physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person; 5. environmental restraint, which restrict a person's free access to all parts of their environment, including items or activities.
This Commonwealth legislation, and the definitions it contains, is not binding on the Tribunal when considering whether to appoint a guardian to make decisions about restrictive practices. However it is preferable for there to be a consistent approach in the way the definitions are applied throughout the quality and safeguards arena and within the Tribunal, provided this is not in itself inconsistent with the legislation within which the Tribunal operates.
In the case of HZC [2019] NSWCATGD 8, the Tribunal decided that a guardian should be appointed for a young woman with a severe intellectual disability who was a participant in the NDIS, for whom "chemical restraint" medications were prescribed. In that case the Tribunal appointed a guardian who had authority to consent to the use of restrictive practices (chemical restraint). This is consistent with the approach taken by this Tribunal when the order under review was made in 2019.
In terms of the need for a guardian to consent to the use of restrictive practices, the Tribunal was given a copy of the most recent BSP from Dr Z, Behaviour Support Practitioner (dated 14 April 2020). This identifies that DZM has a number of behaviours of concerns, including physical aggression towards himself and others, and absconding. The BSP contains the following restrictive practices designed to assist in managing these behaviours: 1. environmental restraint - locked exits (doors, windows and gates to the premises), to prevent absconding as he has no road sense, and to prevent aggressive incidents with members of the public; restricted access to staff at times when his behaviour has escalated; restricted access to iPad overnight to ensure that it is fully charged when he goes out during the day; 2. mechanical restraint: vehicle barrier between front and back to assist if DZM becomes agitated and reaches out aggressively to the driver when driving; 3. chemical restraint: DZM is prescribed a number of medications "to assist him to manage his anxiety and agitation levels and in turn his behaviours of concern. They are also prescribed to assist [DZM] with fulfilment of daily activities and his quality of life." His medication is listed as Olanzapine (20 mg twice a day).
At the hearing the Tribunal questioned whether the practice referred to as "restricted access to staff" and categorised as an environmental restraint is actually a form of "seclusion". The Tribunal was advised that the BSP is being amended to reflect this, although the protocol for staff removing themselves from a situation and leaving DZM alone for a period will remain unchanged.
The Functional Assessment refers to DZM's current daily medications as Clonazepam, Metformin, Fluoxetine, Olanzapine, Propranolol, Sodium Valproate, and Melatonin. At the hearing the Tribunal was told that DZM's prescribing doctor had confirmed that the Olanzapine was the only medication prescribed primarily for the purpose of behavioural control rather than to treat a diagnosed condition. This is therefore the only chemical restraint medication requiring the consent of a guardian. TAM attends DZM's medical appointments and provides consent to all other medications and treatment in her capacity as DZM's "person responsible".
The Tribunal was also given a copy of DZM's NDIS plan and the Service Agreement with the service provider, signed by TAM. This confirmed that TAM is DZM's nominee under the NDIS.
TAM told the Tribunal that DZM sees two specialists; a psychiatrist and a neurologist, as well as having two GPS, one who is close to their home and one close to his home. She attends medical appointments with him and also sees the doctors without him being present on occasion. He also had a dental check last year, which required a general anaesthetic. He needs another check now as well as removal of his wisdom teeth, but this has been delayed by the COVID-19 restrictions. TAM confirmed that she has not had any difficulties being recognised by her son's treating doctors as the person responsible or as the person who makes decisions about his health care in general, without the guardianship order including specific authority for this.
Nonetheless, TAM expressed that including medical/dental and health care decision in the guardianship order would avoid any ambiguity about where authority lies. She gave an example where she felt her authority was questioned by the support staff after a medication error in which DZM was not given a dose of insulin. Staff called TAM about this and she said to give him the missed dose, but staff then called the Health Information Line and followed the instructions given by that service instead of her advice. TAM was annoyed by this and made a complaint to the service provider but was not satisfied with the response. She felt that this would not have occurred if she were appointed as guardian with authority to make decisions about her son's health care and medical treatment. However the Tribunal noted that the service provider has its own duty of care obligations towards DZM, and that a guardian is a substitute decision-maker and not a medical practitioner. In short, the Tribunal was not persuaded that the service provider's staff could or would have dealt with the situation any differently had TAM been her son's guardian rather than his "person responsible".
In relation to the need for the guardian to have authority to make decisions regarding DZM's accommodation and services, TAM said that she is happy with his current accommodation, and has no plan for him to move elsewhere. However she has some concerns about the viability of the service provider's business model and she felt that there may be a need for decisions about his accommodation in the future if the service provider fails. TAM confirmed that she is DZM's NDIS nominee and that in that capacity she made the decision for him to live at his current accommodation, with his current supports. There was no evidence given to the Tribunal that indicated that possible future decisions about where DZM lives, and the support services he receives could not again be made by TAM as his NDIS nominee.
Based on the available evidence, the Tribunal considered that apart from consenting to the use of restrictive practices, TAM is able to make all other necessary decisions for DZM without specific authority being included in the guardianship order. It is appropriate and consistent with the principles of the Act and the s 14(2) considerations of that Act that the guardianship order not include areas of decision making where decisions can be made without the formality of a guardianship order.
The Tribunal decided on the basis of all of this evidence that a further guardianship order should be made and the guardian given authority to make decisions about the use of restrictive practices (mechanical restraint, environmental restraint, seclusion and chemical restraint). This is subject to the condition set out in the order - that the restrictive practices be in accordance with a positive behaviour support plan reviewed at least annually.

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Judgment (9 paragraphs)

Legislation Cited (4)

Cases Cited (1)