GZK [2020] NSWCATGD 5

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. Given the effect of COVID-19, the hearing was conducted entirely by telephone.
3. GZK and KBK participated by telephone at their property together with Ms Z, registered nurse and case manager with a service provider, who facilitated the call to the Tribunal.
4. Ms Mary Falloon, of counsel, acted as separate representative for GZK in the proceedings. Ms Falloon had communicated with GZK prior to the hearing on more than one occasion, and had also spoken with Ms Moxon of the Public Guardian and GZK's wife, KBK.

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order.
2. Accordingly, the questions to be considered by us on this occasion are:

• Is GZK someone for whom the Tribunal could renew an order because he continues to have a disability which prevents him from being able to make important life decisions?
• Should the guardianship order continue, be revoked or be renewed, and if renewed, what functions of guardianship should be given to the guardian?
• Who should be the guardian?

Is GZK someone for whom the Tribunal could renew an 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) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she 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 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 Act.
2. At the time the original guardianship order was made, the Tribunal's reasons note there was evidence from health professionals which indicated that in February 2018, GZK had been diagnosed with a persecutory type delusional disorder and that he had experienced paranoid ideation regarding his wife and an old friend. Also before the Tribunal was a comprehensive capacity assessment, a report which revealed that GZK had relative weaknesses in the encoding of information into memory, retention, reasoning, and language skills which were thought to reflect likely cerebrovascular burden against a background of low cognitive reserve. The Tribunal's reasons also record that GZK has chronic brittle diabetes, is a bilateral below-knee amputee, and requires a wheelchair to mobilise. During the hearing we asked GZK and KBK their views on GZK's decision-making ability. GZK informed us that he could "run his own affairs" and KBK stated "no comment".
3. Ms Z advised us that she had known GZK now for over three years and up until the last six months had very regular contact with him.
4. She said that during the last six months she had had some contact with him but he had mainly had contact with other staff from her service, who provided for his particular needs in his home, usually twice per day. She said that there certainly had not been any improvement in GZK's cognition and she believed there had been a "slight decline".
5. Ms Falloon submitted that there was no evidence before us which suggested that there had been any change in GZK's capacity since previous orders had been made.
6. We were satisfied that GZK remains a person with a disability which continues to prevent him from making important life decisions. He has been diagnosed with persecutory type delusional beliefs and has a low cognitive reserve. We placed particular weight on the evidence of Ms Z that GZK's cognitive abilities have declined, given how long she has known GZK and the level of care and services that she and her staff provide to GZK.
7. We were satisfied that GZK is a person for whom a guardianship order should be renewed if the other legislative criteria are satisfied.

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

1. The primary matter we needed to decide was whether the functions of guardianship prescribed in the current order should be varied to add the additional authority requested.
2. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; 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.
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 Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3). The principles contained in s 4 of the Act are as follows: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
4. In the application requesting the review of the current order, the Public Guardian submitted that there was a need for additional powers of guardianship in these terms: The Public Guardian requests a determination from the Tribunal to add the function of Restrictive Practice function - environmental restraint be considered as a deterrent to [GZK] traveling to the shopping centre by disabling his electric wheelchair. [GZK] does have a manual wheel chair that he can utilise to mobilise around his home and property. … RN [Ms Z] Manager of [the service provider] expressed concerns regarding [GZK] and his ongoing behaviour of attending the local shopping centre daily in the current public social isolation climate: 1 Risk to his own health as he is a high risk of COVID 19 due to his multiple medical issues, diabetes, cardiac disease, poor cognitive level. 2 Risk to [KBK], his wife who is also in high risk categories and does remain in the home. 3 The risk his behaviour is presenting to [the service provider] staff who provide very hands on personal care to [GZK] twice daily. Despite repeated requests [GZK] refuses to stop attending the local shopping centre. [The service provider] are withdrawing all care services putting [GZK]'s personal health at significant risk.
5. GZK told us that he understood that "this flu" is dangerous, that he wanted to "run his own affairs", and that he had not left his house in 15 days.
6. KBK told us, however, that her husband had left their house in recent days and on more than one occasion. She said that she was worried he would keep going out unless something was done to stop him.
7. Ms Z described GZK, due to his cognitive impairment, as having "no capacity to truly understand how dangerous COVID-19 is", and said he was particularly at risk due to having diabetes and other co-morbidities. In general, Ms Z advised us that GZK regularly agreed to do what is asked of him, perhaps doing it for a short while, but then reverts to doing as he wishes. She indicated that KBK could do little to prevent her husband from leaving the home due to her own vulnerabilities. Ms Z confirmed that if steps were not taken to ensure GZK complied with current restrictions, her organisation would have no option but to stop providing their services to GZK. She noted that he receives services in the home twice daily every day of the week, and that these services were the primary reason GZK could remain living at home, an arrangement that he has always been adamant must not change.
8. Ms Moxon of the Public Guardian said that the application was motivated by a need to protect GZK's health, as well as to endeavour to prevent any change to his accommodation, something which GZK has always been opposed to. Without services being maintained in the home, Ms Moxon said it would be difficult to see how GZK could stay living at home given his high care needs. She advised that the Public Guardian had been informed that GZK has been going to a local shopping centre, sometimes multiple times in one day, with no identifiable purpose other than to make contact with others. Ms Moxon advised that she understood and respected GZK's need to have contact with others. GZK had explained this activity to be of cultural importance, describing it as his "walkabout". However, in current circumstances it simply was not safe for him to do so and she was of the view that he does not appreciate the risks.
9. Whilst noting the views put to us by GZK, we accepted the evidence of his wife and those who provide services to him that GZK is regularly leaving his home and will most likely continue to do so, despite the risks of the current pandemic, and in contravention of restrictions on public movement and gathering, unless a mechanism is put in place to restrict his ability to do so. We favoured this evidence to that given by GZK as it seemed inherently likely that GZK's cognitive impairment had caused him to have an incorrect recollection of events. Further, we were satisfied that GZK's services in the home, and therefore his very ability to remain living at home, would be at serious risk unless action can be taken to restrict his freedom of movement during the course of the pandemic, if deemed appropriate by a guardian with a relevant decision making function.
10. Having reached our conclusion of the need for restrictions to be implemented as required, we then needed to determine whether such restrictions could be achieved without a variation to the current order: s 14(2)(d) of the Act.
11. In a recent not dissimilar matter before the Tribunal, also motivated by the COVID-19 pandemic, the issue of whether a remedy might be available under the Public Health Act 2010 (NSW) which would avoid the need to grant additional powers to an appointed guardian was explored: UZX [2020] NSWCATGD 3.
12. In its reasons for decision in that matter, the Tribunal outlined the possible mechanism being contemplated as follows: [6] On 27 February 2020 the Emergency Response Plan for Novel Coronavirus (COVID-19) was activated in Australia. On 12 March 2020 the World Health Organisation declared that COVID- 19 can be characterised as a pandemic. [7] On 30 March 2020 the NSW Minister for Health made the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (Restrictions on Gathering and Movement Order) pursuant to s 7 of the Public Health Act 2010 (NSW). The Restrictions on Gathering and Movement Order prohibits everyone in NSW, other than a person who is homeless, from leaving their place of residence without reasonable excuse (Clause 5). It also prohibits gatherings of more than two people, subject to certain exceptions (Clause 6). The Order will expire at the end of 29 June 2020 unless revoked earlier. [8] The grounds given in Clause 4 of the Restrictions on Gathering and Movement Order for concluding that a situation has arisen that is, or is likely to be, a risk to public health posed by COVID-19 are that: public health authorities both internationally and in Australia have been monitoring international outbreaks of COVID-19 COVID-19 is a potentially fatal condition and is also highly contagious a number of cases of people with COVID-19 have now been confirmed in NSW, as well as other Australian jurisdictions, including by means of community transmission ……. [17] At the hearing conducted on 2 April 2020, the evidence given by the applicant and other witnesses suggested there was the possibility that UZX may meet the requirements of s 62(1)(b) of the Public Health Act as a result of the COVID-19 pandemic and could therefore be a person for whom a public health order may be made pursuant to s 62 of that Act. [18] Section 62(1) of the Public Health Act provides that (1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that - (a) the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health, or (b) the person - (i) has been exposed to a contact order condition, and (ii) is at risk of developing the contact order condition, and (iii) because of the way the person behaves, may be a risk to public health. [19] COVID-19 is a Category 4 condition: Public Health Act, s 51(1), Sch 1. [20] COVID-19 is a contact order condition: Public Health Act, s 51(1), Sch 1A. [21] Section 62 sits within Pt 4 Div 4 of the Public Health Act. Relevantly,: a public health order may authorise the person subject to the order to be detained at a specified place for the duration of the order: s 62(4). in considering whether or not to make a public health order, the authorised medical practitioner must take into account the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health: s 62(6). a public health order made under s 62(1)(b) would, unless said to expire sooner, expire after 14 days (s 62(2)(d) and Sch 1A). This is subject to extension by NCAT upon application by the authorised medical practitioner before expiration of the order: s 65.
13. Upon an analysis of the particular circumstances of the person who was the subject of a guardianship order in that matter, the Tribunal ultimately concluded that a variation to the order was required, as there was no current means of engaging any remedy that may be available under the Public Health Act. It decided that: [40] We concluded that the application for review was concerned primarily with UZX's safety and welfare as a result of COVID-19 and her inability, due to her cognitive difficulties, to understand the need to self-isolate and implement that course of action in line with the Restrictions on Gathering and Movement Order made pursuant to s 7 of the Public Health Act. [41] We also concluded on the evidence available to us that the risk to UZX's health, should she contract the virus, is heightened due to her underlying health issues. UZX's health and safety has been placed in further jeopardy following the cessation of personal care services by the service provider due to concerns that UZX is not self-isolating and therefore is placing staff at risk of contracting the virus. The evidence is that without a considerable degree of personal care support on a daily basis, UZX's general health, hygiene and well-being will deteriorate further. [42] Whilst we note the evidence that the service provider withdrew services to UZX also out of concern for the possible transmission of the disease to other vulnerable clients of that organisation if care staff continued to provide services to UZX, this did not in our view alter the focus of the application being primarily and predominantly being UZX's welfare and interests. [43] We also accepted that UZX's incapacity to observe the requirements of the Gathering and Movement Order places her at risk of coming to the attention of police and the penalties that might apply. [44] The objects of the Public Health Act make clear its focus on managing risk to the community and that the "protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act": s 3(2). [45] We were satisfied that the current issues concerning UZX do not appear to have public health concerns as their focus that might lead to an order being made under s 62(1)(b) of the Public Health Act. [46] Having noted this, and not a matter we needed to determine on this occasion, it does not appear that "exceptional" or "extreme" circumstances in which a threat is posed to the public health need to exist before a public health order is made under s 62(1)(b) of the Public Health Act. There is no requirement in the legislation or regulations that such circumstances exist. We also note the submission made on behalf of the applicant that without evidence that UZX has in fact been exposed to COVID-19, the power to make an order under s 62(1)(b) of that Act is not engaged. The making of the Gathering and Movement Order that acknowledges the potentially fatal and highly contagious nature of the disease and that community transmission has occurred leaves open, in our view, an argument for another day that there may be reasonable grounds to satisfy an authorised medical practitioner that exposure to COVID-19 has occurred: Public Health Act, s 62(1)(b)(i)
14. For reasons similar to those set out in UZX (ibid), we concluded that the provisions of the Public Health Act are unlikely to have application to GZK. The request to review the current guardianship order is concerned primarily with his safety and welfare and there is no other way of ensuring his safety other than to vary the functions of guardianship granted to his appointed guardian.

What additional function of guardianship is required?

1. The Public Guardian has requested the authority to consent to restrictive practices, specifically the authority to consent to environmental restraint. This request was to enable the Public Guardian to decide whether to restrict GZK's access to his electric wheelchair, which has the effect of preventing him from leaving his home.
2. It is understandable that the Public Guardian sought additional authority in these terms in light of the Tribunal's decision in HZC [2019] NSWCATGD 8. In that matter, the Tribunal sought to clarify the role of substitute decision-makers appointed under the Act in consenting to the use of restrictive practices following the commencement of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). Those Rules state that "environmental restraint" is a regulated restrictive practice and provides the following definition in r 6: (e) environmental restraint, which restrict a person's free access to all parts of their environment, including items or activities
3. In this matter though, we were concerned about the applicability of that decision to GZK's circumstances given the direct linkage to the COVID-19 pandemic, and that the granting of a "restrictive practices function" as commonly described by the Tribunal and well understood by behaviour support practitioners may not be the appropriate function to grant to an appointed guardian.
4. Currently in NSW, the "restrictive practices function" that is issued by the Tribunal, as outlined in detail in HZC (ibid), allows an appointed guardian to give or withhold consent to a range of restrictive practices, such as physical restraint, chemical restraint, environmental restraint or seclusion, to assist in the management of behaviours of concern exhibited by a person with disability. The implementation of these practices is significantly (and appropriately) regulated. It may only be exercised within the context of a behaviour support plan that is tailored to the person's circumstances, which is prepared and regularly reviewed by a practitioner with relevant expertise, and, in the majority of cases, is also approved by specialist panel.
5. In GZK's case, there is no suggestion that he is engaging in "behaviours of concern" that would normally be in the purview of a behaviour support specialist. Rather, he is engaging in behaviour which is causing concern solely as a result of the COVID-19 pandemic. But for the pandemic and the resultant Public Health Orders, there would be nothing to suggest that GZK's behaviour in wanting to access his local community was concerning or something to be restricted. Further, there was no suggestion that a behaviour support plan could urgently be developed for GZK or that he would have an entitlement to such services due to the proposed restrictions related to the COVID-19 pandemic.
6. We proposed to the parties the development of a novel function of guardianship which would provide the decision making authority requested but would be directly linked to, and limited by, Public Health Orders restricting the public's normal freedom to leave their homes due to the COVID-19 pandemic. The function would have the characteristics of a combination of the traditional "coercive accommodation function" and the "restrictive practices functions" but without the requirement for a behaviour support plan. In proposing to include elements of the "coercive accommodation function", this would allow an appointed guardian to authorise the NSW Police and Ambulance officers (or others) to take action to ensure compliance with a relevant Public Health Order without the need for recourse to a fine or other sanction.
7. The function we proposed could, on one view, be seen as broad and draconian. However, we were of the view that such breadth of authority was necessary to allow the flexibility that could be required on any given day to assist someone in GZK's circumstances to comply with current restrictions, for his own safety and well-being. On another view, by limiting an appointed guardian's ability to exercise this function to specifically ensure compliance with a Public Health Order restricting freedom of movement due to COVID-19 and only for the duration of such Order, effectively limits the scope of the proposed function in a way that would not be the case if traditional functions were employed. A further benefit of this approach, we envisaged, was that once restrictions on public movement and gathering are no longer required in relation to COVID-19, there would be no requirement for GZK's order to be reviewed. The function would, in effect, be self-extinguishing as it could not be exercised in any manner if an appropriate Public Health Order was not in force.

A "new" function of guardianship?

1. In proposing a "new" function of guardianship we were mindful of the legislative authority which permits the development of functions of substitute decision making.
2. The nature of guardianship orders made under the Act was usefully explained by the Tribunal in NVQ [2016] NSWCATGD 38 at [39]: A guardianship order [made by the Guardianship Division of NCAT] may be plenary or limited: s 16 of the Act. Under a plenary order, the guardian has "custody" of the person and all the functions that a guardian has at law or in equity: s 21(1) of the Act. Subject to any conditions specified in the order made by the Tribunal, a guardian has the power to make the decisions, take the actions, and give the consents (in relation to the functions specified in the order) that could be made, taken, or given by the person under guardianship if he or she had the requisite legal capacity: s 21(2A) of the Act. As noted by an Appeal Panel of the NSW Administrative Decision Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, the areas in which such decisions, actions, and consents can be given have not been exhaustively defined: see also MN v AN (1989) 16 NSWLR 525.
3. Whilst the Tribunal can exercise its discretion to make a plenary guardianship order as defined in s 21(1)(b) of the Act, such an order is very rarely made. This is understandable given the inability of the Tribunal to make a plenary order in circumstances in which a limited guardianship order would suffice: s 15(4) of the Act.
4. When a limited guardianship order is made, the guardian has such of the functions of that person's decision making, to the exclusion of any other person, as the order provides (s 21(2)(b) of the Act) and the order must specify which of the functions the guardian shall have: (s 16(2)(b) of the Act).
5. The functions of guardianship are not defined by legislation. Rather, over the years since the commencement of the Act, the Tribunal (and its predecessor, the Guardianship Tribunal) has issued orders appointing guardians with specific functions to make substitute decisions in certain domains of the person's life. These functions stem from the foundational parens patriae jurisdiction, which originally gave plenary authority, and have been appropriately adapted for modern needs. For example, decisions about where the person should live (the accommodation function), decisions about what services they should receive (the services function), and decisions about what health care they should receive (the health care function), to name but a few.

The Parties' views

1. There was no opposition from any party to the proceedings as to the proposed terms of the function we outlined.
2. Ms Moxon of the Public Guardian described the function in the terms proposed as being fair and allowing flexibility to deal with the fluid circumstances evolving from the COVID-19 pandemic. Mr Kearton, also of the Public Guardian, fully supported the implementation of the proposed order and noted that it would provide the adaptability necessary in GZK's particular circumstances.
3. Ms Falloon, as GZK's separate representative, pointed out how important GZK's mobility is to his quality of life, but advised that she was not opposed to the terms of the function proposed as it allowed flexibility to adopt different approaches in relation to GZK. She suggested methods of restricting GZK's ability to leave his home which would not be as blunt as simply removing his access to his electric wheelchair for what could be a not insignificant time period. Ms Falloon was particularly in support of the proposed restrictions as to the use of the function and the effective "sunset clause" built into the function for when the pandemic subsides.

The "COVID-19 Function"

1. Accordingly, we decided to grant additional authority to GZK's appointed guardian, the Public Guardian, in the form of a "COVID-19 Function" as outlined in our orders (see [3]).
2. In proceeding in this manner we considered the principles in s 4 of the Act (see [25] above). We were satisfied that GZK's decision-making impairment is such that it may result in him making decisions and engaging in activity, during the period of the COVID-19 pandemic, which exposes him to self-neglect. We gave greater weight to the need to promote and protect GZK's welfare and interests (s 4(a) of the Act) and for him to be protected from neglect (s 4(g) of the Act) than the principles that require us to: restrict as little as possible his freedom of action and freedom of decision (s 4(b) of the Act), take account of his views (s 4 (d) of the Act); and to encourage, as far as possible, him to be self-reliant in his personal affairs.
3. We took account of GZK's views but could give them little weight due to his cognitive impairment.
4. We did not disturb the remaining functions of guardianship which were included in the order of 17 June 2019.

Who should be appointed as guardian?

1. The Tribunal has previously appointed the Public Guardian of NSW as GZK's guardian. No private person sought appointment to the role. Accordingly, we continued the appointment of the Public Guardian as GZK's guardian.

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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: 23 April 2020