IF v IG

Is OZS someone for whom the Tribunal could make an order because she has a disability which prevents her 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 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": the 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 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: the Act, s 3(2).
2. The Tribunal considered a Health professional form from Dr Y, general practitioner, dated 2 December 2020, which states that OZS has had severe Alzheimer's disease for at least the last five years, and severe brain injury from CVA since 2015 and that as a consequence of her disability, she is unable to make or communicate decisions.
3. In a form completed by CAS, he states his mother has severe dementia, has had a stroke and is paralysed on her right side and has not been able to walk or speak for the last five years.
4. The Tribunal also noted a document entitled "Bed Rail Utilisation assessment", completed by Ms X, Director of Nursing, dated 20 November 2020. This refers to OZS' dementia and CVA with left side paralysis, dysphagia, aphasia and osteoarthritis. She is immobile, requires a mechanical lifter for transfers from bed and is otherwise bed and chair bound. She has limited bed mobility - i.e. can roll to one side, pulling herself with the bed rail.
5. At the hearing the participants all agreed that OZS is paralysed down her right side (left-sided CVA), and is unable to do anything for herself or make any decisions on her own behalf.
6. The Tribunal is satisfied that OZS is a person who, because of a disability is totally incapable of managing her person, and this prevents her from making important life decisions. She is a person for whom a guardianship order could be made if necessary.

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

1. 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 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 Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. At the hearing, the Tribunal was told that OZS is well cared for and her accommodation at the nursing home is stable. Decisions about her care and treatment are made by CAS and GYN without difficulty. In short, there is no suggestion that there is any need for a guardian to be appointed to make decisions about OZS' routine care.
4. The Tribunal was told that the application had been made because of concern that a guardian may need to be able to consent to the use of raised bed rails for OZS. The Tribunal was advised that bed rails are seen as necessary in OZS' situation and her children prefer that they are used for her safety. Mr Z said that because the Aged Care Quality and Safeguards Commission takes the view that bed rails should never be used in aged care, the nursing home has been through the process of identifying all residents where removal of bed rails does not put them at risk of falling out of bed. He said this has not been possible with OZS.
5. There have been recent changes in the legislative guidelines for aged care facilities in a number of areas, and in particular in relation to the use of "restraint". Section 4 of the Quality of Care Principles 2014 (Cth) ("the Principles"), made under the Aged Care Act 1997 (Cth) and amended in July 2019, defines "restraint" as "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 as any restraint other than a chemical restraint. "Chemical restraint" is defined as medication prescribed for the purpose of influencing a person's behaviour, rather than for the treatment of, or to enable treatment of, a diagnosed mental disorder, physical illness or physical condition.
6. Sections 15F and 15G of the Principles [1] set out the terms and conditions with which a residential care provider must comply when using physical restraint, and chemical restraint. Both are to be used as a "last resort" and both require consent from the "consumer" or their "representative" as well as regular review and consideration of less restrictive alternatives.
7. The Tribunal has recently considered the issues of restraint and substitute consent to the use of restraint in aged care facilities in three published decisions, VZM [2020] NSWCAT GD 25, JFL [2020] NSW CAT GD 36, and SZH [2020] NSWCATGD 28. In very comprehensive explanations of the various legislative regimes, the Tribunal in those cases was satisfied that in the event that a person is not able to consent on their own behalf to the use of physical or chemical restraint, then consent can only be given by a properly authorised guardian.
8. In the case of VZM the Tribunal specifically considered the use of raised bed rails and whether they necessarily amount to a physical restraint. In that case, although the Tribunal noted that raised bed rails would often amount to a physical restraint, in VZM's circumstances, they did not. VZM has quadriplegia, and has "no free movement" and the Tribunal noted that as such "the bed rails do not constitute a restriction on VZM's free movement as it is VZM's physical condition that restricts her movement". The Tribunal was therefore satisfied that the bed rails did not fall within the definition of physical restraint in s 4 of the Principles. In addition to this, the Tribunal noted that VZM "does not engage in behaviours of concern or changed behaviours". She is entirely reliant on assistance of others for all of her needs and the use of bed rails in her case is to prevent her from rolling out of bed by accident which could cause her serious harm rather than to restrict her freedom of movement.
9. OZS' case would appear to be largely analogous with VZM's circumstances. Although OZS is hemiplegic rather than quadriplegic, her free movement is extremely limited and she is entirely unable to get out of bed without full physical assistance.
10. The Bed Rail Utilisation Assessment states that although OZS is immobile and bed and chair bound, because she is able to roll over to one side she is at risk of rolling out of bed. She uses an alternating air pressure relieving mattress which also puts her at risk of sliding, rolling or falling out of bed. OZS has osteoporosis and is at high risk of injury/bone fracture should she experience a trauma such as rolling or falling to the floor even if there was a "crash mat" and/or a low set bed. Mr Z said that with the bed set at its lowest it is still around 40cms off the ground, and a fall even from this height onto a crash mat could be sufficient to cause injury to someone as frail as OZS.
11. The Tribunal was told that OZS is not able to state her preference about bed rails but that she does not indicate any concern about the bed rails. She does not try to get out of bed - she is not able to do so and she does not indicate that she wishes to do so. Her only movements as noted above, involve her hand and arm, whereby she can roll herself from her back onto her side.
12. An email from Mr Z, dated 22 December 2020, states there is no Behaviour Support Plan in place for OZS, as she does not have any behaviours of concern. In the Bed Rails Utilisation assessment, Ms X states "…considering the definition of physical restraint as outlined in s4 of the Quality of Care Principles, namely "restraint means any practice, device or action that interferes with a consumers ability to make a decision or restricts a consumers free movement" it is evident that [OZS]'s medical condition, as outlined above, is interfering with her ability to make decisions and is restricting her free movement, and not the bed rails. The use of bed rails aims to prevent her from rolling or falling out of bed."
13. The hearing participants agreed with this assessment and all agreed that there was accordingly no need for a guardian to be appointed for OZS to consent to the use of bed rails as a physical restraint. Her children are keen for the raised bed rails to continue to improve OZS' safety.
14. The Tribunal was satisfied that consistent with the decision in VZM, it is her disability and not the bed rails that restrict OZS' freedom of movement and freedom of decision. The Tribunal is therefore satisfied that in OZS' particular case, raised bed rails are not a physical restraint requiring the consent of a guardian.
15. As stated earlier, there are no other decisions which are Iikely to be needed for OZS which cannot be made by her children without the need for a guardianship order.
16. The Tribunal heard no submission or evidence which suggested that OZS' cultural or linguistic environment would be affected by making or not making a guardianship order. The Tribunal considered that her family relationships are better supported by the less formal arrangement which is currently in place as this provides for a more flexible recognition of the roles of each of her children in her life.
17. The Tribunal decided on the basis of all of this evidence that a guardianship order should not be made and dismissed the application.

Endnote

1. 15F Physical restraint to be used only as a last resort (1) An approved provider must not use a physical restraint in relation to a consumer unless, in relation to that use of the restraint: (a) an approved health practitioner who has day to day knowledge of the consumer has: (i) assessed the consumer as posing a risk of harm to the consumer or any other person, and as requiring the restraint; and (ii) documented the assessment, unless the use of the restraint is necessary in an emergency; and (b) alternatives to restraint have been used for the consumer to the extent possible; and (c) the alternatives to restraint that have been considered or used have been documented, unless the use of the restraint is necessary in an emergency; and (d) the restraint is the least restrictive form of restraint possible; and (e) the approved provider has the informed consent of the consumer or the consumer's representative to the use of the restraint, unless the use of the restraint is necessary in an emergency. 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: 05 March 2021