IF v IG

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. As the hearing was held during the COVID-19 pandemic it was conducted by videoconference and telephone.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

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

Is MKF someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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": 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 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: Guardianship Act, s 3(2).
2. The term "social habilitation" is not defined in the Guardianship Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]: "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in the community with others."
3. We received a behaviour support plan (BSP) dated 17 June 2021 from Ms Y (behaviour support clinician with an allied health and workplace rehabilitation service provider) and a Service Plan Review dated 20 December 2021 from Ms X (speech pathologist at a disability service provider) and Ms W (occupational therapist at the disability service provider).
4. It was evident from this material that as a result of autism spectrum disorder and associated intellectual disability, MKF requires support and supervision with the activities of daily living. He is primarily non-verbal. He has significant social and communication deficits, sensory sensitivities and repetitive behaviours. He has limited safety awareness or insight into his behaviour. This was consistent with MKF's participation in the hearing.
5. It is not disputed that MKF has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3): 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.
3. As noted above, MKF was unable to participate meaningfully in the hearing due to the nature of his disabilities.
4. GJF and her parents told us that as MKF has severe autism spectrum disorder and an intellectual disability, he has very limited ability to communicate or attend to his own needs. As a result of this, his family are applying for legal guardianship to assist him with decision making/daily living. He cannot defend himself should any informal/formal/legal matter arise.
5. MKF's family told us that there is no plan for a change in MKF's accommodation. At present they are able to support him in the family home. There is no need for an accommodation function to be attached to an order.
6. MKF receives behaviour support from the allied health group. He receives speech pathology, occupational therapy and exercise physiology from the disability service provider. He attends a day program through another disability service provider. PKF is MKF's National Disability Insurance Scheme (NDIS) nominee and with GJF and her husband is able to advocate on MKF's behalf to ensure that he receives all the services from which he could benefit. We were satisfied that MKF will continue to receive services practicably without this function being attached to a guardianship order.
7. MKF's family are legally recognised as his persons responsible under the Guardianship Act by medical and dental practitioners. He does not object to treatment and his health care needs are well managed. There is no need for the functions of medical and dental consent or health care to be attached to a guardianship order.
8. Ms V, Ms U and Ms T are behaviour support clinicians from the allied health group. They participated in the hearing and told us that a guardianship order is required to consent to the use of a buckle cover as a mechanical restraint and the restriction of MKF's access to wrappers and rubbish when he is in the car as an environmental restraint.
9. In HZC [2019] NSWCATGD 8, the Tribunal described the change in the way restricted practices are now dealt with in NSW. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Commission and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices.
10. Registered NDIS providers and behaviour support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the Rules), which commenced on 1 July 2018. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6): 1. Seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted; 2. Chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition; 3. Mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes; 4. Physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm / injury, consistent with what could reasonably be considered the exercise of care towards a person; 5. Environmental restraint, which restricts a person's free access to all parts of their environment, including items or activities.
11. We were told that when MKF travels in the car he will unfasten his seatbelt, move into a different seat and refasten his seatbelt during travel. This is usually from the right hand side to the middle seat. This distracts the driver and puts MKF at risk if there is an accident as his seatbelt is not fastened. Ms S, Day Program Team Leader at the other disability service provider, told us that this is not an issue at day program as MKF travels in the car with other participants and a second staff member occupying all the other available seats.
12. There is no suggestion that MKF is taking off his seatbelt to engage in a behaviour of concern, such as hitting other people or jumping out of the vehicle. The purpose of the buckle guard is to maintain MKF in a seat when he unfastens his seatbelt during transit. He only wants to remove the seatbelt to change his position in the car. The buckle cover reduces the risk of injury to MKF should an accident occur. The law requires everyone in a vehicle to wear a seatbelt. The buckle guard is used to maintain a fastened seatbelt and to address the legal requirement that everyone wears a seatbelt in a vehicle.
13. We were not satisfied that the use of the buckle guard in MKF's circumstances is a restrictive practice. We were satisfied that the buckle guard is a safety device to maintain a fastened seatbelt.
14. The BSP also reports that when MKF is travelling in the family car, he will throw McDonalds/Hungry Jack's wrappers and drink bottles that he does not want from the back of the car to the front of the car. This distracts the driver. As a result of this, the BSP proposed that an environmental restraint of restricted access to wrappers and other items that could be thrown be implemented. Ms S told us that this is not an issue with the day program. All bags and items are put in the boot of the vehicle if participants are going on a lengthy excursion and breaks taken to enable participants to have water or other snacks when the vehicle is not in motion. Generally, for shorter excursions, bags containing snacks and drinks are left at the day program centre.
15. We considered that it would be draconian to attach a restrictive practice function of environmental restraint to an order when NDIS registered providers are not implementing the practice. It is not a particularly restrictive practice to make sure that MKF does not have rubbish/wrappers/bottles in the car. MKF's family are able to decide what food wrappings/bottles they want him to have access to during transport when they are driving him themselves.
16. Ms S did not see the need for the restrictive practices function.
17. We were not satisfied that there was a need for a restrictive practice function to an order in MKF's current circumstances.
18. MKF is well supported by his parents and sister. They are able to make decisions on his behalf about his accommodation, services and health care in a culturally appropriate manner. Legally, MKF's family are his persons responsible under the Guardianship Act and may provide or withhold consent to medical and dental treatment in that capacity. There is no suggestion that his welfare and interests are neglected.
19. We were not satisfied that a guardianship order should be made in the caring and supported environment in which MKF is placed. Accordingly, we dismissed the application for guardianship.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2023