DZP [2020] NSWCATGD 57

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are:

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

Is DZP someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Guardianship Act. A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Guardianship Act.
2. When the previous order was made, the Tribunal found that DZP had a severe intellectual disability, and autism spectrum disorder, and was unable to make important life decisions. There is not new evidence before the Tribunal which conflicts with this. DZP's ongoing incapacity was not disputed by the hearing participants as his conditions are lifelong.
3. The Tribunal is satisfied that DZP continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order if necessary.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. Since 1 July 2018, registered National Disability Insurance Scheme (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.
4. 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.
5. 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.
6. 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 was satisfied that medication prescribed as a chemical restraint fell outside the definition of "medical treatment" in s 33(1)(a) of the Guardianship Act and so was not something which a "person responsible" could consent to. Instead the approach taken by the Tribunal was to appoint a guardian who had authority to consent to the use of restrictive practices - chemical restraint.
7. When the order was first made, the Tribunal was advised that there was a need for a guardian to consent to restrictive practices identified in an interim behaviour support plan, which at that time, were environmental restraint (locked external doors including garage door and locked doors to kitchen and bathroom and cupboards), chemical restraint and mechanical restraint (car harness). At that time the Tribunal was satisfied that all other decisions could continue to be made for DZP by his mother and father as had been the case throughout his life.
8. For this hearing, the Tribunal considered a comprehensive behaviour support plan for DZP, dated 8 December 2019, prepared by Mr X from a consulting firm. This identifies the same environmental restraints as the interim behaviour support plan, no chemical restraints (on the basis that all medications are prescribed for treatment of DZP's diagnosed medical conditions), and mechanical restraints (car harness and a "onesie" body suit which was not included in the interim BSP).
9. At the hearing BAO and Ms Y both supported an ongoing guardianship order to allow for consent to the restrictive practices in use for DZP. They confirmed the ongoing use of the car harness and seatbelt buckle, but Ms Y said that the restrictive practices panel has suggested that it may not be a restrictive practice, because it is a basic safety issue. Nonetheless they still report on its use as required. They confirmed the use of the onesie, which is to prevent DZP from touching and potentially eating his own faeces. He is doubly incontinent and has an irregular bowel routine so it is not always possible to know immediately if he has opened his bowels and this poses a health risk to him. BAO and Ms Y said that he seems to like wearing the onesie and that it possibly gives him some sensory comfort. He asks to have it put on and, now won't agree to having his pyjamas put on until the onesie is on. It is short sleeved and short legged and does not restrict his ability to masturbate if he wishes.
10. BAO and Ms Y confirmed the same environmental restraints are in place, preventing DZP from leaving the premises alone and accessing the kitchen because of issues with eating inappropriate items.
11. Ms Y said that the restrictive practices panel have not asked for reports regarding his medications, seemingly on the basis that they are not seen to be chemical restraints.
12. The Tribunal confirmed that BAO is able to make all other necessary decisions for her son within these being included in the guardianship order. It is appropriate and consistent with the principles of the Guardianship Act and the s 14(2) considerations that the guardianship order not include areas of decision making where decisions can be made without the formality of a guardianship order. She is his nominee with the NDIS, and is recognised as his person responsible and makes decisions about his medical and dental treatment in this capacity and her role in making these decisions for him will be unaffected by this guardianship order.
13. 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 and chemical restraint) for DZP subject to the conditions set out in the order.

Who should be appointed as the guardian?

1. The Tribunal has previously decided that BAO meets the requirements of the Guardianship Act and may be appointed as guardian for DZP.
2. The Tribunal was satisfied that BAO continues to meet the requirements of the Guardianship Act and re-appointed her as guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.
2. The Tribunal decided to make an order for three years as it is likely there will be an ongoing need for a guardian for at least this period of time.

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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: 09 June 2021