FNX [2021] NSWCATGD 4

Procedural matters

1. Three other applications for guardianship made in relation to other residents of the ACF (2010/438907, 2017/197698 and 2001/00105570) were lodged at the same time as the application for FNX. Similar, although not identical, issues to the issue raised in the application for FNX are raised in those applications. An issue common to each of them is the use of a coded keypad on the external doors to the facility. In one of the cases (2017/197698), similar to FNX's situation, coded keypads are also utilised on the doors of the dementia-specific unit in which the resident resides. None of these residents have any family or friends involved in their lives.
2. In addition, applications seeking the appointment of a guardian for residents of a different NSW aged care facility were also received by the Tribunal (2009/474871 and 2018/226238). These applications raised similar, although not identical, issues in relation to the applications made on behalf of the ACF. However, the issue that is common between them is the use of a coded keypad on the external doors to the facility. The applicant's understanding in those two matters was also that a guardian needs to be appointed for those residents in order for lawful consent to be provided for the use of restraint, as a result of the Quality of Care Principles.
3. In order to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)), we note the following:

• Separate representatives were appointed for each of the six people in relation to whom applications for the appointment of a guardian were made. Ms Linda Rogers, solicitor, appeared in this role in relation to each person
• Procedural directions were made in similar terms in relation to each of the six applications with the result that written submissions were able to be filed by the separate representative and the legal representative for the Public Guardian that addressed the issues common to each of the six applications
• The hearings of the applications made in relation to the residents of the ACF commenced on 17 August 2020 and were adjourned on a part heard basis to 12 October 2020. On this latter date, the two applications from the other NSW aged care facility were also listed for hearing. This enabled issues common to each of the six applications to be addressed in a manner that reduced duplication and enhanced efficiency whilst also ensuring that the details and circumstances of each individual and the application in relation to each of them was considered on its own merits.
• On 12 October 2020 the Public Guardian sought and was granted leave to be legally represented in each of the six proceedings. The application for leave was supported by the applicant and the separate representative. The Public Guardian was represented by Mr Higgins, Counsel, who was instructed by the Crown Solicitor.

1. We reserved our decision in relation to each of the six matters on 12 October 2020. On 8 March 2021 we issued our order in relation to the application concerning FNX and these are our Reasons for Decision.
2. We note that there is nothing in the Aged Care Act or the Quality of Care Principles that is binding on the NSW Civil and Administrative Tribunal (NCAT) when considering whether it should appoint a guardian with the function of making decisions about restrictive practices or restraints (VZM [2020] NSWCATGD 25 ("VZM") at [57(1)]; HZC [2019] NSWCATGD 8 ("HZC") at [44]). It is nevertheless clear that the regulatory scheme outlined in the Quality of Care Principles prompted the making of these six applications to NCAT and continues to form the basis of an increasing number of applications being received by NCAT.

The hearing

1. Due to the restrictions imposed by the COVID-19 pandemic, the hearings on 17 August 2020 and 12 October 2020 proceeded without any of the participants appearing in person. Instead parties and their representatives participated by telephone and videoconference.
2. At the end of these Reasons for Decision is a list of the people who participated in the hearing for FNX. [Appendix removed for publication.]
3. FNX did not participate in the hearings on 17 August 2020 or 12 October 2020. LZT told us that in her view FNX would be unable to participate in the hearing due to the extent of her cognitive impairment.
4. The separate representative told us that she attempted to speak with FNX by telephone prior to the hearing date in August 2020. The separate representative tried to ask FNX questions about living at the other NSW aged care facility but, according to the separate representative, she became distracted and would not talk any further. The separate representative submitted that we should proceed in FNX's absence.
5. We were satisfied that FNX was provided with the opportunity to participate in these proceedings. We note that the applicant does not believe that FNX would be able to participate meaningfully in these proceedings due to the extent of her cognitive impairment. We note that the separate representative submitted that the hearing could proceed despite FNX's absence and we decided to do so.

Is FNX a person for whom a guardianship order could be made?

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 the person 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": Guardianship 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; 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: Guardianship Act, s 3(2).
2. The documentary evidence provided to us, including material completed by FNX's general practitioner, Dr Z, confirms that FNX has a diagnosis of chronic schizophrenia, dementia and is recovering from the effects of a basal ganglia stroke in early 2020. In a written assessment form completed in early January 2020, the then Centre Manager recorded that FNX participated in a cognitive checklist. FNX scored 4 on this test which LZT says indicates "severe impairment".
3. LZT said FNX had lesser physical and cognitive function than before her stroke. Her mobility has recovered to some degree, and she is able to mobilise with a walker, however LZT described her as "high risk" when walking.
4. The evidence before us is that FNX requires full care in relation to all aspects of her day-to-day living. LZT told us that FNX is resistant to care, demonstrates no insight, but once reassured usually complies with care. LZT said FNX fluctuates in her understanding, where she appears to understand for a moment, but then it passes.
5. LZT said her view was that FNX was someone for whom a guardianship order could be made, because she was incapable of managing her person.
6. The separate representative and Ms SH, on behalf of the Public Guardian, both agreed that FNX was someone for whom a guardianship order could be made.
7. Based on the evidence of the extent of her cognitive impairment arising from the combination of chronic schizophrenia, dementia and more recently a basal ganglia stroke, we were satisfied that FNX is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help (her) function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
8. We were satisfied that FXN is a person for whom a guardianship order could be made.

Should the Tribunal make a guardianship order?

1. The real issue in contention in these proceedings was whether a guardian should be appointed for FNX in order to make decisions about the following matters: 1. Advance care planning relating to end-of-life decision making; 2. The use of a low lying bed; 3. The use of psychotropic medications; 4. The use of coded keypad in order to exit the memory support unit in which FNX resides as well as the use of coded keypads at all exits of the ACF.
2. In deciding whether or not to make a guardianship order for FNX, we were required to consider the factors listed in s 14(2) of the Guardianship Act, relevantly the views (if any) of FNX; a spouse and unpaid carers (if any); the importance of preserving FNX's existing family relationships and cultural and linguistic environment; and the practicability of services being provided to FNX without the need for the making of a guardianship order.
3. 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).
4. For the reasons previously outlined we were unable to ascertain FNX's views about these matters. The evidence also indicated that no-one is currently involved in FNX's care other than paid service providers.
5. We were not advised of any family relationships or cultural or linguistic matters that would be affected by the making of a guardianship order.
6. We took into account the evidence that FNX has had important services, including her accommodation and health care needs, met at the ACF.
7. We had to consider whether there were other services and aspects of FNX's life that would benefit from the appointment of a guardian having regard to the principles set out in s 4 of the Guardianship Act.
8. We address in turn the evidence and our findings in relation to each of these matters.

End-of-life decision making

1. The application sought the appointment of a guardian for FNX so that healthcare planning could be undertaken, including end-of-life planning that could involve consideration of a "not for resuscitation order". The Tribunal was provided with a document headed "The [name of not-for-profit organisation] - Advance Care Directive" ("ACD") which had not been filled out. LZT explained that advance care planning for FNX and other residents has been strongly encouraged by public health agencies and the local area health district especially during the COVID-19 pandemic.
2. The separate representative submitted that the evidence did not indicate that FNX had specific health issues that would give rise to the need for end-of-life decision-making at this time. She noted that healthcare planning for FNX could take place with the facility obtaining guidance from FNX's treating medical practitioners.
3. Ms SH, on behalf of the Public Guardian, agreed with the separate representative's submission.

Conclusion - end-of-life decision making

1. The evidence clearly indicated that FNX is not capable of making a valid ACD. Nor could an appointed guardian make an ACD on her behalf.
2. A guardian appointed with a health care function does, however, have the authority to make decisions in connection with health care that includes decisions to withdraw life sustaining treatment (FI v Public Guardian [2008] NSWADT 263, [51]).
3. However, on the basis of the evidence presented in this case, FNX does not appear to be at a stage in her life that would necessitate a guardian being appointed with this function at this point in time. Whilst the evidence clearly indicates that FNX's physical health and cognitive state has declined since her stroke, she is under the regular review of her general practitioner, has access to allied health professionals to monitor, amongst other things, her dietary intake, and an extended care plan is in place, and is regularly reviewed, to manage her general health and care.
4. We concluded that it is unnecessary to appoint a guardian in relation to decision making about FNX's health care including end-of-life decision making.

Low lying bed

1. We were provided with written and oral evidence that suggested that the applicant was seeking to have a restrictive practices function included in the order in relation to the use of a low-lying bed for FNX.
2. LZT gave evidence that FNX's bed is operated as a "low low" bed, meaning her bed is raised when she wishes to get into bed, and then lowered immediately once she is in bed, for safety reasons - to mitigate the risk of harm if she were to roll or fall out of bed. She has crash mats placed around her bed whenever she is in bed, to soften her fall if she were to roll or fall out. LZT indicated that this happens "very very frequently and [FNX] consistently rolls out of bed" creating a risk of injury. LZT could not recall exactly when the low low bed was instituted for FNX, however, said it was sometime in March 2020 after her stroke.
3. LZT told the Tribunal the low low bed was not being used to prevent FNX from getting out of bed, but was for her safety to reduce the height at which she might roll out. At both heights at which the bed is placed, that is, both the high setting when FNX goes to bed, and when the bed is lowered once she is in bed, she is unable to leave her bed without "lots of assistance" from staff. LZT said that if FNX tried to leave her bed by herself when on the high setting, she would likely fall. She is unable to leave her bed of her own accord, other than rolling out, when it is on the low setting.

Conclusion - low lying bed

1. In VZM the Tribunal determined that, subject to certain qualifications, the definition of "physical restraint" in the Quality of Care Principles should be adopted as an appropriate definition by the Tribunal as it "can be understood to comfortably include a broad range of practices which were historically regarded by the Tribunal as constituting restrictive practices" (at [57(6)]. The qualifications relate to an observation that the definitions used in the Aged Care Principles may not encapsulate all types of restrictive practices previously considered by the Tribunal to be such (at [57(7)]) and that the categories of restrictive practice in the aged care arena for which a guardianship order may be sought is not closed (at [57(8)]).
2. Under the Quality of Care Principles, "restraint" is defined in s 4 as meaning "any practice, device or action that interferes with a consumer's ability to make a decision or restricts a consumer's free movement". "Physical restraint" is defined in the same section as "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 medical disorder, a physical illness or a physical condition".
3. On the facts available to us, we find that although FNX's is unable to purposefully leave her bed when it is on the low-lying setting, this is also the case when it is on the high setting, that is, she requires assistance to leave her bed no matter the height of the bed. On that basis, we conclude that the use of a low-lying bed for FNX, when on its low-lying setting, does not amount to a physical restraint as that term is defined under s 4 of the Quality of Care Principles. Nor does it constitute a restrictive practice not otherwise captured by that definition as it is not a practice that would otherwise be unlawful under the common law (VZM, [47]). We note that the purpose of the low-lying bed is to ensure FNX's safety should she accidentally roll out of bed.
4. We concluded that it is unnecessary to appoint a guardian in relation to the issue of the positioning of FNX's bed in this manner and that having regard to the principles set out in s 4 of the Guardianship Act, it would not promote her welfare and interests pursuant to s 4(a) of that Act to do so.

Psychotropic medications

1. FNX is prescribed the following major medications: benztropine 1mg bd, sodium valproate 200mg nocte, and paliperidone depot 100mg 4-weekly. She has been on these medications since her initial move to the ACF. Olanzapine was previously prescribed on a PRN basis when FNX had delusions or hallucinations. We were advised that this PRN medication is no longer utilised. FNX is also prescribed a range of other minor medications in relation to other health conditions including type-2 diabetes and hypertension.
2. In a report dated 3 March 2020, Dr Y, Psychiatrist, noted that she had undertaken a review of FNX along with clinicians from the Older People's Mental Health Service. The report confirmed that FNX had recently experienced a basal ganglia stroke from which she was still having difficulties with mobility. Dr Y gave as her impressions that FNX has chronic paranoid schizophrenia, extrapyramidal side effects that had improved post-CVA and residual functional and motor deficits post-CVA. Dr Y recommended no changes to FNX's medication at that stage, she appeared calm and happy and that she would only consider reducing medication if FNX began experiencing side effects. The evidence was that FNX's major medications have not been changed since that review.
3. In response to a question from the Tribunal as to whether she had any evidence to suggest that the major medications were prescribed for anything other than her mental health issues, LZT responded in the negative.
4. We were also provided with copies of extended care plans that focus on the areas of FNX's cognition, mental health and behaviour management. This material indicates that FNX has a history of behaviours that includes removal of her clothing in common areas if she has spilt anything on herself; agitation when she seeks dirt or paper on the floor (or imagines that she sees them) and attempts to clean floors placing her at risk of falls; and verbal aggression when FNX becomes upset or agitated because she forgets to speak English and cannot make herself understood.
5. This material sets out a number of detailed strategies utilised by the aged care facility to address some of these behaviours.
6. The separate representative submitted that as the medications taken by FNX constitute major medications and it is not clear that FNX is equipped to give consent to them, then it is open to the Tribunal to make a finding that a guardian should be appointed to give substitute consent. We did not understand the separate representative to make a submission that the medical treatment constituted chemical restraint.
7. Ms SH, on behalf of the Public Guardian, queried whether FNX may be able to provide her own consent to major medical treatment despite her cognitive impairment particularly given the evidence suggesting that up until relatively recently FNX's general practitioner appeared to believe that FNX did have capacity to provide her own consent. Ms SH acknowledged that the treating dental practitioner who sought, and was provided with, consent for FNX to undergo dental treatment in 2018 obviously formed the view that FNX was unable to provide informed consent for that procedure.

Conclusion - medications

1. We accepted the evidence of FNX's undisputed diagnosis of chronic schizophrenia, that the major medications used (sodium valproate, paliperidone and benztropine) are administered to treat her conditions and its symptoms, and evidence from LZT that the medications are not used for any other purpose, such as behavioural management. As a consequence we find that these medications are not being used for the purposes of chemical restraint (see s 4 of the Quality of Care Principles; VZM (at [57(4)]); HZC, [71]-[98])).
2. We find that these medications constitute major medications for the purposes of Pt 5 of the Guardianship Act and their lawful administration requires the informed consent of the person to whom the medication is being administered. It will be a matter for a treating practitioner to form a view as to FNX's capacity to do so. However, given the doubts raised in the evidence about this issue, especially since FNX's stroke in early 2020, we determined that a guardian should be appointed with the authority to make decisions about medical treatment for FNX.

Coded keypads

1. The evidence indicates that FNX has resided in the memory support unit at the ACF since arriving at the ACF in late 2017. As noted earlier (at [6]), the Reasons for Decision of the Tribunal relating to the decision made on 12 April 2018 referred to evidence given to the Tribunal that FNX was living in a secure ward at the facility at that time but that it was proposed that she would be moved to an open ward as she enjoyed walking around the grounds.
2. The evidence provided on this occasion is that FNX has remained living in a secure dementia unit. According to LZT's understanding, this has occurred because FNX was living in her room before it became a dementia specific unit, she is settled there, and it is thought that it would cause too much disruption for her were she to be moved out of that familiar environment.
3. LZT gave evidence that the memory support unit is a secure unit separated from the general population area of the ACF and requires the entry of a passcode into a coded keypad to exit the unit. None of the residents of the unit, including FNX, are given the passcode as it is intended that these residents may only leave the unit under the supervision of a staff member. The basis for this approach is the view that to allow residents of the unit to leave the unit unaccompanied would place themselves, or others, at risk. It was not clear to us, however, that this is the reasoning in relation to FNX given LZT's evidence as to the reason for FNX's ongoing residence in the dementia specific unit.
4. The lay-out of the memory support unit allows residents' free access to an outdoor courtyard area as well as a kitchenette and dining room area.
5. The applicant also gave evidence about the use of coded keypads on all exits of the general population area of the ACF. This evidence was in the same terms as the three other matters heard on the same date as this application concerning FNX. This evidence, which was not disputed by any other participant, is that exit from the ACF may only occur through a front door and an outer gate that are locked by a coded keypad. The passcode for both coded keypads is written next to the coded keypad on the outside of the outer gate and the outside of the front door of the facility. It is not written next to the coded keypad inside the facility next to the front door or inside the outer gate. A swipe card is given to some residents of the facility and some family members of residents. The use of a swipe card enables the front door and outer to be opened without utilising the coded keypad.
6. These measures are taken to ensure the safety of residents who are unable to utilise the coded keypad or swipe card and who, due to cognitive and/or physical impairment, would be at risk if they left the facility.

Findings in relation to FNX's residential circumstances

1. Having regard to the written and oral evidence provided by the original applicant and substitute applicant, both of whom held and currently hold senior management positions at the ACF, and noting that these factual matters were not disputed by any other party or the separate representative, unless otherwise noted we accepted that the following matters were established to the requisite civil standard. 1. FNX has lived in the memory support unit for a number of years. All exits from memory support unit require the entry of a passcode into a coded keypad. 2. FNX has not been given the passcode to exit the memory support unit. She would be unable to operate the keypad even if she were given the passcode due to the extent of her cognitive impairment. 3. It does not appear that FNX is living in the memory support unit for any reasons relating to issues of safety to herself or others. Rather, it seems that she is living there as it is thought that it would cause too much disruption to her to leave the secure part of the facility. 4. To LZT's knowledge, FNX has never asked to leave the memory support unit. 5. FNX does not have an appointed guardian. Nor does she have any family or friends involved in her care. Currently no-one has the formal legal authority to make decisions on her behalf. Consequently, the reality is that as a result of the impact of FNX's cognitive impairment on her decision-making ability and the absence of any other person, family or friend, to take an active role in her life, the management of the aged care facility is left with little option but to make decisions on FNX's behalf on an informal basis and do so on the basis of their understanding of the duty of care that they owe to her. This includes decisions in relation to the circumstances in which she was placed into the memory support unit, is prevented from leaving the unit, the circumstances in which she is permitted to leave that unit and the requirement that return to that unit should she leave it. 6. To LZT's knowledge, FNX has not left the ACF for some time. The evidence confirmed that she has not been provided with passcode to exit the front door or gate of the facility and nor does she have a swipe card. Nor would FNX be able to utilise the keypad or a swipe card due to the extent of cognitive impairment.
2. In the matter of SZH [2020] NSWCATGD 28 ("SZH"), we set out (at [78]-[111]) a summary of the written and oral submissions made in relation to the use of coded keypads by the separate representative and the Public Guardian in relation to these proceedings and the other proceedings heard on the same day as this application concerning FNX.
3. We had to consider whether or not FNX's circumstances could constitute a practice that would be unlawful under common law, such as false imprisonment. In the matter of SZH we set out our understanding of the legal principles concerning the tort of false imprisonment ([112]-[126]) and provided a summary of the principles, as we understood them, relevant to our consideration of that matter ([127]). In our view the same legal principles apply to the circumstances of FNX as they did to SZH. The summary of those principles is as follows: [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 (bht Diane Aldridge) v State of NSW [2011] NSWCA 413, [153]). Any "restraint within defined bounds which is a restraint in fact may be imprisonment": (Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 44 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.

Findings in relation to physical restraint

1. Applying the principles relevant to this matter set out above, we find that FNX lives in an environment in the memory support unit in which she is prevented from leaving by way of a coded keypad. FNX does not have access to the passcode. Nor does she have any other means of exiting that unit unless she is permitted to do so by a staff member.
2. On the available evidence FNX has not left the memory support unit but if she were to leave, it could only be under the supervision of a staff member. She would be required to return to the locked unit.
3. Whist FNX is able to go into the outdoor courtyard area that forms part of the memory support unit, she is still restricted to that area and that of the memory support unit. There are no other means of exit from that unit.
4. Further to this, the memory support unit is located within the general residential area of the facility. This is an environment in which the door and the front gate are locked at all times unless someone is passing through them. The only way to unlock the door and gate is either by entering a passcode into a keypad or passing a swipe card over a sensor. FNX does not have access to either the passcode or a swipe card and on the available evidence would be unable to do either of these things due to the extent of her cognitive impairments. There are no other means of exit from the facility.
5. We are satisfied that the conditions under which FNX resides at the facility involve a total restraint on her freedom of movement as she is unable to unlock the door of the memory support unit or the front door and gate of the facility. FNX is not able to exit the memory support unit unless permitted to do so by a staff member. If she were to exit the unit, she would be unable to do so unless she was accompanied and would be returned to the facility if she left. The same restrictions apply in relation to the general area of the facility.
6. We find that FNX is restrained even though we are satisfied that she is unaware of being restrained and, on the available evidence, has not asked to leave the memory support unit or the facility or attempted to leave these areas of her own accord. She is restrained even though physical force is not required to prevent her from leaving. We arrive at these findings bearing in mind that the restraints placed on FNX's freedom of movement are so placed with the intention of ensuring her safety as well as the safety of others. On the basis of the authorities set out in SZH, as the tort of false imprisonment is one of strict liability, lack of fault, in the sense of absence of bad faith, is irrelevant.

Is FNX's physical restraint justified?

1. We find that FNX is unable to give her own informed consent to her restraint.
2. We considered whether the restraint is otherwise authorised, justified or excused by statute or at common law. As Allsop P observed in Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 ("Darcy") at [2]: [t]he question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law.
3. In SZH at ([140]-[147]) we set out the legal principles concerning the common law doctrine of necessity that may be relied on in limited circumstances to justify what may be otherwise regarded as a trespass to the person.
4. Having regard to these authorities we have taken a view that it is unlikely that the common law defence of necessity is available in relation to the restraint of FNX which involves a situation of long-term residential care in a locked memory support unit within an aged care facility (see SZH [146]-[147]).
5. There was no other common law defence or justification put to us as to form a possible basis for FNX's restraint and we find that there is none.
6. As a consequence, we find that FNX's circumstances could constitute the tort of false imprisonment.

Should a function be included in a guardianship order for FNX in relation to physical restraint?

1. In considering which decision-making functions to include in a guardianship order for FNX (Guardianship Act, s 16(2)(b)), we had to consider whether our finding that FNX's circumstances could constitute the tort of false imprisonment should lead us to exercise our discretion to provide a guardian with decision making authority to give or withhold consent to his restraint. We had to do so having regard to the principles set out in s 4 of the Guardianship Act.
2. We have carefully considered the proposition put on behalf of the Public Guardian that there is no utility in appointing a guardian in these circumstances, the argument being that "what decision could be made that isn't already being made" and would amount to "rubber stamping".
3. As noted in VZM (at [60(1)]), accepting this position potentially exposes providers to civil liability unless the practice is authorised, justified or excused by law.
4. More fundamental in our view, however, is that accepting this argument would not be an appropriate approach having regard to the principles set out in s 4 of the Guardianship Act for the following reasons.
5. It does not promote FNX's right to live a normal life in the community (Guardianship Act, s 4(c)) if her living arrangements constitute false imprisonment. Other members of the community do not expect to be restrained in this manner.
6. Nor does continuing to live in such a situation promote FNX's freedom of action: Guardianship Act, s 4(b).
7. Weighing against the appointment of a guardian could be the argument that appointing a substitute decision-maker and thereby removing decision making authority from FNX restricts FNX's freedom of decision and action rather than promoting it. However we note and agree with comments made in MAQ [2016] NSWCATGD 70 at [34] that: …it is flawed logic to suggest that where the nature of the subject person's decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the "least restrictive option". Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions.
8. In our view, it would promote FNX's welfare and interests (Guardianship Act, s 4(a)) for a guardian to be appointed to decide upon the circumstances of his restraint. Due to the impact of FNX's cognitive impairment, she is unable to give or withhold consent to the circumstances in which she is living. It is appropriate and in her interests for a guardian to have the authority to do so in her stead. Providing a guardian with this authority recognises not only the fundamental importance of FNX's right to freedom of movement and liberty, but also ensures that any restriction on those rights (Guardianship Act, ss 4(b)-(c)) is properly considered by someone with the legal authority to do so in circumstances where FNX is unable to do so on her own behalf.

What function is appropriate - accommodation or physical restraint?

1. For the reasons set out in SZH at [163]-[167], we decided that it is appropriate to describe the function of guardianship in this matter as one of a restrictive practice involving "physical restraint", as that term is defined in s 4 of the Quality of Care Principles, rather than as an accommodation function. As noted in VZM at [57(2)], consistency in the way definitions are applied in the aged care arena and within the Tribunal "would promote the welfare and interests of people in relation to whom restrictive practices are being used in residential aged care facilities in NSW".

Conditions

1. In JFL [2020] NSWCATGD 32 ("JFL"), a case involving another resident at the ACF who resides in the same memory support unit as FNX, at [96]-[101] we stated as follows: "[96] The Tribunal in HZC provided (at [32]-[36]) a brief history of the nature of restrictive practices and the role of the Tribunal. This included recognition that the Tribunal's jurisprudence developed in the context of applications being made in relation to people who engage in "behaviours of concern" which involve physical or other risks to themselves and others and that responses needed to be developed to reduce or remove those risks (HZC, [32]). The development of behaviour support plans to address behaviours of concern form a critical part of clinical practice around these issues. When appointing a guardian to authorise the use of restrictive practices, the Tribunal has traditionally imposed conditions upon the appointed guardian's authority to do so (pursuant to s 16(1)(d) of the Guardianship Act). As noted in HZC (at [100]), these conditions have "usually been framed such that an appointed guardian may only consent to the use of restrictive practices to address challenging behaviours within the context of a comprehensive positive behaviour plan". More recently, in the case of recipients of services from NDIS service providers, the Tribunal has reframed the relevant condition so that it more closely equates with the regulatory requirements imposed by the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (HZC ([101]). [97] We have found that JFL exhibits behaviours that have led to the use of medications that could be regarded as chemical restraint. The evidence also indicates that these issues have led to her placement in the memory support unit of the ACF. She is also restrained, as we have found, by her placement in the ACF more generally. [98] Much has been said about the inconsistency in the legislative protections offered around the use of restrictive practices under the NDIS (Restrictive Practices and behaviour Support) Rules when compared to the Quality of Care Principles (see, for example, the Royal Commission into Aged Care Quality and Safety's Interim Report: Neglect (Vol 1), p 215 ("Interim Report"). See also Royal Commission into Aged Care Quality and Safety's Counsel Assisting's Final Submissions Proposed Recommendation 29: Regulation of Restraints. This is particularly the case concerning the obligation placed on particular providers under the NDIS scheme to engage an approved 'behaviour support practitioner' as well as the development and lodgement of a behaviour support plan. The Interim Report describes the Quality of Care Principles "fall[ing] well short of this approach" (p 215). [99] However imperfect it may be, the realities of a scheme regulating the use of restrictive practices within the aged care sector is a matter that we nevertheless consider we should have regard to in considering the conditions to be imposed upon a guardian. [100] Schedule 2 of the Quality of Care Principles sets out the Aged Care Quality Standards. These are described as "standards for quality of care and quality of life for the provision of aged care" (Aged Care Act, s 54-2(1)). Section 15F of the Quality of Care Principles (dealing with the obligations placed on approved providers in relation to the use of physical restraint) and s 15G of that Act (dealing with the obligations placed on approved providers in relation to the use of chemical restraint) each require that an approved provider ensures that the "care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2" identifies certain matters in relation to the use of restraint (ss 15F(2)(c) and 15G(2)(b) of the Quality of Care Principles). [101] Having regard to the principles that paramount consideration should be given to JFL's welfare and interests (Guardianship Act, s 4(a)) and that her freedom of decision and freedom of action should be restricted as little as possible (Guardianship Act, s 4(b)), and also having regard to the relevant provisions set out in ss 15F and 15G of the Quality of Care Principles and the Aged Care Quality Standards set out in Sch 2 of the Quality of Care Principles, we impose the following conditions upon JFL's appointed guardian when utilising the authority to authorise the use of chemical and physical restraint: (1) The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence JFL's behaviour: (a) as a last resort to prevent JFL harming herself or others; and (b) in accordance with a care and services plan that incorporates: (i) the behaviours that are relevant to the need for the restraint; (ii) reasons why the restraint is necessary; (iii) the alternatives to restraint that have been used (if any); and (iv) provision for review, including by an appropriate medical specialist/s"
2. Although the evidence indicates that FNX's situation is different to that of JFL in that there are no behavioural reasons for FNX's ongoing placement is a secure dementia specific unit, that is no reason in our view to lessen the protections offered by the conditions placed in the order in relation to JFL. Rather, the conditions are even more critical in our view so that an appointed guardian can give full consideration as to whether FNX's living arrangements are in her interests.
3. For those reasons we imposed the same conditions upon FNX's appointed guardian when utilising the authority to authorise the use of physical restraint as those made in relation to JFL (at [101]).

Who should be appointed?

1. In the absence of any other person available to be considered in the role of guardian, we had no option but to appoint the Public Guardian as FNX's guardian.

Length of the order

1. The term of an initial guardianship order is usually for a period not exceeding one year: Guardianship Act, s 18(1)(a). However, an initial order may be made for up to three years if the Tribunal is satisfied that the person has permanent disabilities, is unlikely to become capable of managing his or her person and there is a need for an order longer than one year: Guardianship Act, ss 18(1A)-(1B).
2. We decided to make a guardianship order for three years. We were satisfied that FNX has permanent cognitive impairment. She is not going to become capable of managing her person and there is a need for an order longer than one year. This is because a substitute decision-maker will be needed to make decisions about the circumstances in which she is living on an ongoing basis.
3. In addition, FNX is currently prescribed a number of major medications that will require the appointment of a substitute decision on an ongoing basis.

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: 15 April 2021