IKJ [2021] NSWCATGD 27

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. We accepted the evidence of Dr Z, Geriatrician that IKJ's participation in the hearing would likely cause him to become acutely distressed and impact upon his behavioural symptoms. With the agreement of the other parties, we accepted it was appropriate to proceed in his absence.

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

• Is IKJ 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 IKJ 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) ("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": 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. We were provided with reports from the following health professionals:

• Dr Y, Geriatrics Advanced Trainee, dated 21 May 2021
• Ms X, Occupational Therapist, dated 2 June 2021

1. Dr Z, Geriatrician and Ms W, Social Worker, gave oral evidence at the hearing.
2. The evidence from the health professionals is to the following effect:

• IKJ was diagnosed with mixed Alzheimer's and Vascular dementia by geriatrician, Dr V, in 2019. His cognition has gradually worsened. On assessment with the Mini-Mental State Examination (MMSE), in January 2020 he scored only 18/30. He has required increasing assistance from his spouse and carer, NZI.
• His medical background includes cerebrovascular disease, ischaemic heart disease, hypertension, hypercholesterolaemia, chronic kidney disease, sleep apnoea, osteoarthritis and other conditions.
• On 15 March 2021 IKJ was admitted to the public hospital for a right hemicolectomy for cancer of the colon. He experienced complications in the post-operative period. This has exacerbated his dementia. His condition has markedly deteriorated. IKJ is experiencing significant behavioural symptoms of dementia.
• IKJ was transferred to a private rehabilitation hospital on 13 April 2021, however, due to his acute agitation, aggression and refusal of health interventions, he required transfer back to the public hospital within 12 hours of discharge.
• On 5 May 2021 it was necessary to transfer IKJ from the general geriatrics ward to the secure psychogeriatrics ward at the public hospital.
• Assessment indicates that IKJ lacks decision-making capacity. He has severe short-term memory impairment, disorientation, agitation and verbal aggression secondary to his dementia. He lacks insight into his care needs. His disorientation and persistent exit-seeking place him at risk of absconding and becoming lost if such an attempt is successful. He is at high risk of falls and injury due to his impulsivity, lack of safety awareness and non-adherence with ankle foot orthosis. He requires 24-hour care and supervision. It is the treating team's recommendation that he moves to residential care.

1. NZI and UAS did not take issue with the evidence of the health professionals. UAS said that IKJ cannot make informed decisions. She said that his short-term memory is bad and he does not understand where he is and the repercussions of his dementia.
2. On the basis of this evidence, we were satisfied that IKJ has a disability being dementia which renders him at least partially incapable of managing his person and which prevents him making important life decisions. He is a person for whom we could make a guardianship order.

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 is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. NZI agrees with the application for guardianship. She said that she is elderly and is unable to look after IKJ at home. UAS also agrees with the application for guardianship. She has been visiting IKJ frequently and concurs that his dementia and behavioural symptoms have worsened. On the basis of her evidence and that of the treating team, IKJ is unable to engage in informed discussions around discharge planning and his future accommodation. The evidence of the health professionals consistently supported the need for a guardian.
4. The decision-making functions for the guardian proposed for the guardian were in relation to accommodation and restrictive practices, and specifically being chemical and environmental restraints. The applicant proposed that the guardian be given authority to authorise others to implement decisions including, if necessary, NSW Ambulance and Police as a last resort measure.
5. In determining if a practice is a restrictive practice for which informed consent is required from this Tribunal, we consider the practice in light of the lawfulness of the practice as well as the context, nature, degree and purpose of the restriction to ensure that the person's rights are not breached. The Tribunal must balance the right to autonomy of the person with the need to protect the interests and welfare of that person.
6. Issues relating to restrictive practices for IKJ were addressed in the evidence of Dr Z, Dr Y and in a Behaviour Support Plan (BSP) prepared by Sydney Local Health District that was provided to us. Consistent with the evidence of Dr Z and Dr Y the BSP details significant behaviours of concern for IKJ including verbal and physical aggression. This causes distress to IKJ and creates risks to his safety and the safety of others.
7. Dr Z indicates that IKJ's behaviours have improved with the specialist nursing care provided in the psychogeriatric ward and with medication prescribed for him, being Risperidone. There has been a significant reduction in his physical aggression. Difficulties continue, however, in relation to verbal aggression, agitation and exit seeking behaviours.
8. Dr Z states that IKJ will require restrictive practices within his residential care and she supports the need for a guardian to be appointed. She anticipates that IKJ will require a secure dementia unit within a residential aged care facility and medication on an ongoing basis.
9. The Tribunal has considered issues relating to restrictive practices in aged care in recent decisions of JFL [2020] NSWCATGD 32 and VZM [2020] NSWCATGD 25 ("VZM").
10. As detailed in these decisions, the Quality of Care Principles 2014 (Cth) ("the Principles") made pursuant to the Aged Care Act 1997 (Cth) specify obligations on residential aged care providers in relation to the use of restrictive practices. Since the decision in VZM, there have been further amendments to the Aged Care Act and the regulatory regime in aged care now largely adopt definitions that apply under the National Disability Insurance Scheme Rules. These were considered and also adopted by the Tribunal in HZC [2019] NSWCATGD 8. Relevant to the present matter are definitions of environment restraint and chemical restraint as restrictive practices as follows: "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 physical condition; Environmental restraint, which restricts a person's free access to all parts of their environment, including items or activities"
11. The Principles made pursuant to the Aged Care Act make clear that restrictive practices are to be used only as a last resort and impose obligations to ensure that the restraint is assessed as required due to risk of harm posed to the consumer or other person, that alternatives are considered to the extent possible and use of the restraint is documented including within a plan for the consumer.
12. On the basis of Dr Zs' evidence, we were satisfied that the restrictions upon IKJ and medication prescribed constitute environmental chemical restraint requiring the consent of a guardian. Her evidence is that the medication is prescribed for the purposes of managing his behaviour.
13. There was no evidence before us which indicated that appointing a guardian would have an adverse impact on existing family relationships or any cultural or linguistic issues which were relevant to our decision.
14. Balancing the factors set out in s 14(2) of the Act but giving IKJ's welfare and interests paramount consideration, we were satisfied on the basis of the evidence that a guardianship order should be made. This is necessary to ensure that IKJ is appropriately accommodated, provided with care that he needs and to ameliorate risks to his welfare. We accepted the evidence of the health professionals supported by NZI and UAS both who presented as having a care of and knowledge of IKJ and concern for his safety and welfare.
15. In addition to the matters set out in s 14(2), we had regard to the guiding principles set out in s 4 of the Act. The principles of most relevance were the need to protect IKJ from neglect, abuse or exploitation and the need to encourage him so far as possible to live a normal life in the community. We also considered the importance of minimising any restriction to IKJ's freedom of decision and action. As s 4(a) of the Act requires, we gave paramount consideration to IKJ's welfare and interests. Ultimately, we were satisfied on the basis of the evidence that his welfare and interests would be preserved only by the making of an order.
16. We accepted the applicant's evidence as to the decision-making functions required by the guardian. We accordingly made a guardianship order with the decision-making functions of accommodation and restrictive practices and specifically chemical and environmental restraints. The guardian requires authority to authorise others to implement decisions as set out in the order.

Who should be the guardian?

1. The applicant proposed that UAS be appointed as the guardian. NZI and UAS supported this.
2. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
3. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, at [66]).
4. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
5. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: the Act, s 15(3).
6. The Supreme Court has held that: "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
7. Consistent with the evidence of the health professionals, our own interactions with UAS indicated her suitability to be appointed as the guardian.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made an order for 12 months. At the end of this period, it is appropriate that a review is conducted to determine whether a guardian continues to be required for IKJ and if so, whether there needs to be any amendment to the functions of guardianship.

---

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: 24 May 2022