HFD [2020] NSWCATGD 8

The Hearing

1. At the end of these Reasons for Decision are lists of the parties and witnesses who attended the hearing. [Appendix removed for publication.]
2. HFD did not attend the hearing. The applicant advised us that, consistent with medical evidence that we will refer to, HFD would be unable to understand the nature of our enquiry or to participate in the hearing as he is largely unable to communicate verbally. On that basis, we were satisfied that it was appropriate to proceed in the absence of HFD.

What did the Tribunal have to decide?

1. Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption.
2. The threshold issue for the Tribunal, once an application has been properly made, is whether the person who is the subject of the application has a disability which renders them at least partially unable to manage their person.
3. Even if this threshold issue is established, the Tribunal has discretion about whether to make orders and what kind of orders to make. The Tribunal considers all relevant factors. The welfare and interests of HFD are the Tribunal's paramount consideration.
4. The questions to be considered by the Tribunal are:

• Is HFD someone for whom the Tribunal could make a guardianship order?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• If a guardianship order is to be made, who should be the guardian and how long should the order last?

Is HFD someone for whom the Tribunal could make a guardianship order?

1. Section 14(1) of the Guardianship Act 1987 (NSW) ("the Act") enables the Tribunal to make a guardianship order for HFD if we are satisfied that he is "a person in need of a guardian".
2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing their person": s 3(1) of the Act. The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. Commonly, we consider the person's ability to make important personal, health and lifestyle decisions, which is a major life activity that impacts on the person's ability to manage in society.
3. We received a medical report about HFD by Dr Z. In that report, the Doctor confirmed HFD's diagnoses, listed above, and that HFD's intellectual disability falls into the severe range.
4. The Plan indicates that HFD receives assistance and support with all major aspects of daily living.
5. Both NZD and Ms Y, who is the house manager of the group home where HFD lives, confirmed that in their view HFD meets the description of a person in need of a guardian.
6. We were satisfied that HFD has a disability, being an intellectual disability. This causes him to have impaired decision-making capacity for important personal, health and lifestyle decisions, such that he is partially incapable of managing his person and needs supervision or assistance to function in society. He is someone for whom we could make a guardianship order.

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

1. When considering making an order, we must have regard to HFD's views, if we were able to obtain them and those of NZD, who provided care to HFD before he commenced living in a group accommodation setting: s 3F of the Act. As HFD has no spouse, our other mandatory considerations were the importance of preserving HFD's existing family relationships and particular cultural and linguistic environments, as well as the practicability of services being provided to him without the need for an order: s 14(2) of the Act.
2. These matters are in no particular order and each must be considered. Where there are different or competing issues to be considered, we undertake a balancing exercise in our consideration of these matters. Of course, we also consider any other relevant evidence, guided by the principles that are set out in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below.
3. As detailed above, HFD was unable to attend the hearing or talk to us to present his views because of his disabilities.
4. NZD raised only one decision making area where she felt that HFD may benefit from the appointment of a guardian, being for decisions relating to the use of restrictive practices.
5. All other needs HFD may have for substitute decision-making are being met informally or pursuant to the person responsible regime, provided in the Act.
6. Restrictive practices are not to be used without consent of the person they are used with, if they can properly do so, or a guardian.
7. It is also now clear that in the current regulatory environment, service providers in NSW for people who are recipients of the NDIS and cannot give their own consent, such as HFD, are unable to use restrictive practices in the provision of those services without obtaining substitute consent from a guardian and in accordance with the authorisation process in effect in NSW: see, for example, HZC [2019] NSWCATGD 8, a decision of the Tribunal with which we respectfully concur and whose reasoning we adopt on the proper interpretation of the various forms of restrictive practices described and the consent and authorisation processes applicable to them.
8. On that basis, we are satisfied that we should appoint a guardian with the function of making decisions about the restrictive practices used with HFD and that, if we do not do so, it may become impracticable for him to receive services.
9. We then need to decide which forms of restrictive practices are used with HFD for which a guardian might need to give consent.

Environmental restraint

1. The restriction of HFD's access to his kitchen and bathroom taps clearly constitutes an environmental restraint, in that it restricts HFD's free access to all parts of his environment, including items or activities. We are satisfied that the guardian should have authority to make decisions about this practice.
2. We were also informed that the door to the laundry of HFD's home is locked to prevent HFD's access to the water sources in it. This should be included in the Plan.

Mechanical restraint

1. The Tribunal has adopted a definition of mechanical restraint (HZC, at [58]) as: 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.
2. The Plan asserts that the use of a locked seat belt buckle guard for HFD is not a restrictive practice. The asserted basis for this is that it is "[not used] to maintain HFD in his seat to stop a behaviour of concern (harm to self or others)". The Plan also notes that "[t]he law requires everyone to wear a seat belt in a vehicle", presumably with reference to vehicles that are moving, or stationary but not parked: s 265 Road Rules 2014 (NSW).
3. The Plan also indicates that the buckle guard is used at all times when HFD is in a vehicle.
4. The evidence of NZD and Ms Y, however, contradicted these assertions in material respects.
5. Firstly, they advised that the buckle guard is not always used, and is now only commonly used when HFD demonstrates heightened behaviour or when staff who are unfamiliar to him are providing support.
6. Secondly, they told us, and we accept, that the buckle guard is also used to stop HFD removing his seat belt to access other passengers in the car to annoy or touch them and when the driver of the vehicle transporting HFD to and from his day service parks the vehicle and assists other service users to their day program or to their home. In the latter case, there are no other support staff in the vehicle. NZD said that she would prefer to be appointed guardian to make decisions about restrictive practices including mechanical restraint, as the day-program is inclined to overuse the buckle guard as a convenience and she would like to have ability to ensure it is not overused.
7. We are satisfied that that the use of the buckle guard restricts or subdues HFD's movement for the primary purpose of influencing his behaviour, and note that it is irrelevant whether it is "behaviour of concern" as referred to in the Plan. The evidence of NZD and Ms Y makes it clear that the guard is used primarily to control HFD's behaviour, in seeking to remove his seat belt and move about the vehicle.
8. Given their evidence that it is not used all the time and that it is used when the vehicle is parked, we reject the implied assertion in the plan that its use is primarily to ensure compliance with the lawful requirement to wear a seatbelt.
9. For the same reasons, we are not satisfied that it is for therapeutic or non-behavioural purposes. It is a mechanical restraint. We are satisfied that the guardian should have authority to make decisions about this practice.

Who should be the guardian and how long should the order last?

1. NZD sought appointment as her son's guardian. In appointing her, we must be satisfied that she has a personality which is generally compatible with that of HFD, that she has no undue conflict of interest and that she is willing and able to exercise the functions of the proposed order: s 17 of the Act.
2. NZD has clearly maintained a close relationship with her son and her evidence satisfied us that, if appointed, she would take a careful and considered approach to making decisions with a primary focus on promoting HFD's welfare and interests.
3. NZD is in all respects suited to the role and should be appointed.
4. We decided to make an order for two years, because HFD's disability is stable and of longstanding. His need for substitute decision-making around the issue of restrictive practices is unlikely to change within that period.

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: 28 May 2020