JFL [2020] NSWCATGD 32

What happened

JFL was a permanent resident of an aged care facility in regional New South Wales. She had lived there since July 2018 and, from April 2019, in a memory support unit. The Tribunal recorded that Alzheimer’s dementia had caused severe cognitive impairment and that JFL needed high-level care. The evidence also described other health conditions, including depression, anxiety, lupus, recurrent urinary tract infections, reflux and a seizure disorder.

A facility manager applied for a guardian in April 2020. The application was prompted in part by the manager’s understanding that a locked keypad system and psychotropic medication amounted to physical and chemical restraint under the Quality of Care Principles 2014 (Cth), and that a guardian’s consent was required. The application also raised advance care planning and possible “not for resuscitation” decisions.

The physical setting mattered. Residents in JFL’s memory support unit were not given the keypad code. JFL could not operate the keypad because of her cognitive impairment. She could leave the unit only with staff supervision. The Tribunal also found she had no access to the means needed to exit the facility, and there were no other exits available to her. Although she had access to an outdoor courtyard within the unit, that did not provide a way out.

The Tribunal made a three-year limited guardianship order and appointed the Public Guardian. The guardian received functions relating to medical and dental consent where JFL could not validly consent, and consent to or withholding of consent for chemical and physical restraint. The order did not include an end-of-life decision-making function: the Tribunal considered that unnecessary on the evidence at the time. The order’s restraint conditions required last-resort use to prevent harm and a care and services plan addressing the behaviour, reasons for restraint, alternatives and review.

Why the court decided this way

The Tribunal first considered whether JFL met the statutory threshold for an order. Under ss 3 and 14 of the Guardianship Act 1987 (NSW), the relevant questions included whether disability made the person totally or partially incapable of managing their person, and whether the person was restricted in major life activities to an extent requiring supervision or social habilitation. The Tribunal relied on evidence of severe cognitive impairment and extensive reliance on staff for personal care and daily needs. It was satisfied that JFL was a person for whom a guardianship order could be made.

The central legal and factual issue was restraint. The Tribunal adopted the approach summarised in SZH [2020] NSWCATGD 28: whether restraint exists is a factual question, assessed against the person’s circumstances and the nature and extent of the restriction. The principles the Tribunal applied did not require physical force, awareness of restraint, an expressed wish to leave or an actual attempt to leave. A person could be restrained even if they did not know it.

On the facts, JFL could not unlock the memory support unit or the facility and could leave only if staff permitted and supervised her departure. The Tribunal found that she was under “total restraint” on her freedom of movement. That conclusion was not displaced by the availability of the courtyard or by the absence of evidence that JFL had asked to leave. The relevant question was the practical restriction on her movement.

The Tribunal then considered whether the restraint had legal justification. It rejected the proposition that the Public Guardian’s earlier consent to JFL’s permanent residence at the facility was equivalent to consent to ongoing restraint or placement in a locked ward. The Tribunal treated those as distinct decisions. It considered the common law defence of necessity, referring to the requirement of imminent peril and a response reasonably necessary at the time. Because the restriction involved long-term residence in a locked unit, the Tribunal considered necessity unlikely to justify it. The reasons state that no other common law justification was advanced. The Tribunal’s conclusion was that the circumstances could constitute false imprisonment; it did not purport to determine a separate damages claim.

The finding of restraint informed the decision to appoint a guardian with a physical-restraint function. The Tribunal considered that without a guardian, facility staff were making decisions informally because JFL could not make them and no family member or friend was involved. It rejected the suggestion that appointment would merely “rubber stamp” existing practice. In its view, formal decision-making by a guardian could better protect JFL’s welfare and interests, and her liberty and freedom of action, than continuing without a legally authorised decision-maker.

The medication issue required a different inquiry: why was each medication being prescribed? The Tribunal adopted the Quality of Care Principles’ definition of chemical restraint, which excludes medication prescribed to treat or enable treatment of a diagnosed mental disorder, physical illness or physical condition. It noted that evidence from the prescribing practitioner would be desirable to clarify the purpose of medication. There was no direct evidence from the prescribing doctor about risperidone. However, the available evidence indicated it was used to address behavioural issues, including aggression and agitation. The Tribunal found that, on balance, risperidone was likely being used to influence JFL’s behaviour. It reached a similar conclusion about mirtazapine, given the evidence that it was used to stabilise and modify behaviour when it escalated. By contrast, midazolam was described as prescribed for prolonged seizures. The Tribunal said a guardian was needed to consent to major medical treatment for JFL’s seizure disorder.

The Tribunal did not grant every function sought. It accepted that JFL could not make a valid advance care directive and noted that a guardian could make some health-care decisions, including decisions about withdrawal of life-sustaining treatment. However, it found no present need for a guardian to decide end-of-life matters: JFL had regular medical review and an extended care plan. That conclusion was tied to the evidence then before the Tribunal.

Before and after state of the law

The decision describes the applicable legal framework rather than setting out a comprehensive account of the law before and after the case. It records that guardianship orders are governed by the Guardianship Act, including the statutory threshold in ss 3 and 14, the principles in s 4 and the available functions and conditions under s 16. It also notes that an initial order is usually for no more than one year, but may extend to three years where the person has permanent disabilities, is unlikely to regain capacity to manage their person, and a longer order is needed: ss 18(1A)–(1B).

For physical restraint in aged care, the Tribunal’s reasoning applied common law principles concerning false imprisonment. It drew on the authorities cited in SZH and treated restraint as a factual question. It emphasised that total restraint does not require force, awareness or a request to leave. It distinguished consent to a residential placement from consent to ongoing confinement.

For chemical restraint, it adopted the Quality of Care Principles definition as an appropriate framework for distinguishing medication used to influence behaviour from medication used to treat a diagnosed condition. It stressed that the person’s individual circumstances and the prescribing reason matter. It also observed that the aged-care regulatory scheme did not bind NCAT in deciding whether to appoint a guardian, though the scheme was relevant to the applications and to the conditions imposed.

The practical “after” position in this matter was a formal guardian with limited, defined authority, rather than informal decision-making by the facility alone. The Tribunal did not declare that every locked keypad is unlawful or that every psychotropic medication is a restraint. Its conclusions depended on the particular evidence about JFL’s ability to exit, the nature of the locked environment, and the stated purposes of her medication.

Key passages with plain-English translation

The Tribunal’s summary states that whether someone is restrained is “a question of fact” determined from the person’s circumstances and the nature and extent of the restriction. In plain English, labels and intentions are not conclusive. The practical effect on the individual’s movement is central.

The Tribunal found that JFL experienced “a total restraint on her freedom of movement”. The factual basis was that she could not unlock the unit, had no code or swipe card and could leave only with staff permission. The courtyard was within the restricted area, not an exit from it.

The Tribunal also explained that JFL was restrained even though she was unaware of the restraint and had not asked to leave. In plain English, lack of protest does not itself establish freedom to leave, particularly where cognitive impairment means the person may not understand or communicate the restriction.

On the facility’s earlier placement decision, the Tribunal said consent to permanent residence was distinct from a decision about ongoing restraint or placement in a locked ward. This distinction is important to the reasoning: agreement to live at an aged care facility was not treated as a general legal authorisation for every restriction imposed there.

On necessity, the Tribunal considered it “unlikely” that the common law defence was available for long-term care in a locked memory support unit. The reasoning was that the cited authorities required imminent peril and a response reasonably necessary at the time, whereas this was an ongoing residential arrangement.

For chemical restraint, the Tribunal’s analysis focused on purpose. It found risperidone and mirtazapine likely constituted chemical restraint because the available evidence indicated they were used to influence behaviour. The Tribunal also acknowledged the uncertainty created by the absence of direct evidence from the prescribing practitioner. The conclusion was therefore a fact-specific assessment “on balance”, not a categorical rule about either medication.

What fact patterns trigger this precedent

The decision is most directly relevant where an aged-care resident with cognitive impairment is unable to leave a locked unit or facility independently, has no access to the code or other exit method, and can leave only with staff permission or supervision. The Tribunal’s reasoning indicates that a resident need not have asked to leave or tried to do so before a restriction may amount to total restraint.

It is also relevant where a person’s placement in a facility was authorised, but the actual conditions later involve locked doors, restricted movement or return to the unit. JFL distinguishes authority to reside at a facility from authority for ongoing confinement. The judgment does not decide every possible form of placement consent; the distinction arises from the facts and the evidence about the earlier guardian’s decision.

The decision may also be relevant where an aged-care provider seeks a guardian’s authority for medication that could either treat a condition or influence behaviour. The Tribunal treated the medication’s purpose as significant and said evidence from the prescribing practitioner should, where possible, clarify that purpose. A record showing only that a medication is prescribed does not necessarily resolve whether it is treatment or chemical restraint.

Finally, the reasoning applies to applications where a person cannot give valid consent, no family or friend is actively making decisions, and service providers are making decisions informally. The Tribunal considered the identity and authority of the decision-maker an important practical issue. Its order also demonstrates that restrictive-practices authority may be conditioned by last-resort requirements and care-plan review safeguards.

How later courts have treated it

The supplied judgment text does not provide decisions after JFL [2020] NSWCATGD 32 or describe how later courts or tribunals treated it. It is therefore not possible, on this source alone, to state whether later decisions followed, distinguished or limited JFL.

The reasons do identify related NCAT decisions available to the Tribunal at the time. In particular, the Tribunal said that the legal principles it had summarised in SZH [2020] NSWCATGD 28 applied to JFL’s circumstances. It also referred to VZM [2020] NSWCATGD 25 and HZC [2019] NSWCATGD 8 on the regulatory framework and restrictive-practices functions. These are authorities considered in the judgment, not evidence of subsequent treatment of JFL.

For research purposes, the key propositions to track in any later treatment would be the distinction between residential-placement consent and consent to ongoing restraint; the application of total-restraint principles to keypad-controlled aged-care units; and the circumstances in which a guardian’s restrictive-practices function is appropriate. The text provided does not establish whether later decisions have adopted those propositions beyond the Tribunal’s own application in this case.

Still-open questions

The decision leaves questions that it did not need to resolve on the evidence before it. First, the Tribunal had no direct evidence from JFL’s prescribing practitioner about the particular symptoms risperidone was prescribed to treat. It acknowledged that if risperidone were being used to treat paranoia, rather than to influence behaviour, it would not fall within the chemical-restraint definition adopted. The judgment therefore highlights the importance of clear evidence about the clinical purpose of a medication, but does not settle the classification of medication where that purpose is disputed or mixed.

Second, the Tribunal considered necessity unlikely to justify JFL’s long-term locked-unit arrangement, but did not provide an exhaustive account of every possible statutory or common law authority that might arise in other circumstances. It noted that lawful physical restraint may exist under legislation, giving the Mental Health Act 2007 (NSW) as an example, but the decision concerned the particular aged-care circumstances before it.

Third, the judgment does not determine how a facility should assess a resident whose capacity, wishes or practical ability to use a keypad changes over time. The reasons stress the evidence about JFL’s inability to operate the system and the absence of any alternative exit. They do not set out a general operational test for all keypad systems.

Fourth, the Tribunal acknowledged differences between safeguards in the NDIS restrictive-practices scheme and the aged-care framework, referring to the Royal Commission’s Interim Report. It imposed care-plan and review conditions, but did not resolve the broader policy question of what statutory safeguards should apply across the two sectors.

Lastly, the Tribunal declined an end-of-life function because the evidence did not establish a present need. That was not a determination that such a function could never be appropriate for JFL. The reasons tied the conclusion to her circumstances at the hearing, including regular medical review and an existing care plan.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Judgment (19 paragraphs)

[1]

Background

JFL is a permanent resident of an aged care facility (ACF), with services provided by a charitable organisation, in regional NSW, and has lived there since July 2018. JFL came to the ACF as a respite resident from a public hospital. Prior to that time, JFL lived in her own home in regional NSW.
The evidence before us is that JFL requires high-level care due to the effect of Alzheimer's dementia that has resulted in severe cognitive impairment. We were told in the hearing that JFL has resided in the memory support unit at the ACF since April 2019.
We were told that JFL has a range of health issues including depression, anxiety, lupus, recurrent urinary tract infections, gastro-oesophageal reflux disease, and seizure disorder.
JFL has two children. Whilst we understand that at least one of JFL's children has participated in previous hearings in relation to guardianship applications concerning JFL, neither of her children have any ongoing contact with her and they did not participate in the current proceedings.
Guardianship orders were made for JFL from 2017 until 2019. The Public Guardian was first appointed on 18 April 2017 to make decisions on JFL's behalf concerning the provision of services. This order was made at a time when JFL continued to live in her own home in regional NSW. The Reasons for Decision of the Tribunal from 18 April 2017 indicated that a guardianship order was made so that JFL "could be assisted with more frequent services into her home to maintain living in the community" ([26]). That order was made on a non-reviewable basis and expired after 12 months.
Another application for guardianship was made shortly after the expiration of that order and on 25 July 2018, the Public Guardian was again appointed as JFL's guardian for 12 months with decision-making authority about her accommodation, health care, medical and dental treatment and services. On the same date a financial management order was made for JFL and the management of her estate was committed to the NSW Trustee and Guardian. The Reasons for Decision of the Tribunal on that occasion indicated that JFL was by then residing at the ACF on a respite basis following discharge from the public hospital. The evidence before the Tribunal was that JFL was no longer able to live safely in her own home and was resistant to being placed into full time residential care.
The 12 month guardianship order was reviewed on 24 July 2019 and the order was ended on that date. The Reasons for Decision referred to evidence that JFL continued to live at the ACF and "would be able to receive all necessary supports without having a guardianship order in place" ([18]). Amongst other things, the Public Guardian's evidence was that "JFL takes several medications as needed, including one major medication for agitation" ([15]).
On 27 April 2020 a new application for the appointment of a guardian for JFL was made by Ms Z, the Centre Manager at the ACF at the time.
LZT is now in the role of Centre Manager and has replaced Ms Z as the applicant in these proceedings.
The application was made because of the applicant's understanding that:

the existence of locked doors to the memory support unit in which JFL lives; and
the use of psychotropic medication; constitute physical and chemical restraints under Pt 4A of the Quality of Care Principles 2014 (Cth) ("Quality of Care Principles") made pursuant to the Aged Care Act 1997 (Cth) ("Aged Care Act") and that their use requires the consent of an appointed guardian. The ACF is required to report on a quarterly basis to the Aged Care Quality and Safety Commission concerning the use of these restraints, and without the appointment of a guardian, it was submitted that the ACF could be in breach of its obligations under the Aged Care Act.

In relation to the use of coded keypads, the applicant drew our attention to information contained in a Regulatory Bulletin issued by the Aged Care Quality and Safety Commission entitled "Regulation of physical and chemical restraint" (Issue No. 2019-8.1, Issue Date: 11 December 2019) ("Regulatory Bulletin") as providing the basis for seeking the appointment of a guardian for JFL. This stated as follows: 7. Is the use of a coded key pad on doors to exit the facility considered a restraint? Yes. Aged care providers may require consumers to use a PIN-code to exit the home. If the PIN code is not provided to the consumer, or if they are unable to use the PIN-code for other reasons (such as poor memory, vision impairment, out of reach), this restricts their ability to leave the home. A physical environment that restricts consumers' free movement is a physical restraint. The organisation must take the steps set out in the Principles for consumers who are subject to this form of restraint. The Commission would be looking for evidence that physical restraints of an environmental nature are based on the least restrictive option. For example, for consumers who have been assessed by an approved health practitioner as requiring this type of restraint due to a risk of harm to themselves or others, has the basis for this decision been noted in their care and services plan, is the decision for this restraint transparent and is it reviewed as circumstances change. Under the Quality Standards, the service environment is expected to promote the free movement of consumers including access to outdoor areas even if for safety reasons some consumers' access or egress is restricted. Arrangements to protect consumers need to be in line with their assessed care and services plan and the least restrictive option for them.
The application and material in support also sought the appointment of a guardian to make decisions about advance care planning and "not for resuscitation" orders in relation to JFL.

[2]

Procedural matters

Three other applications for guardianship made in relation to other residents of the ACF (2010/438907, 2015/384472 and 2001/00105570) were lodged at the same time as the application for JFL. Similar, although not identical, issues to the issue raised in the application for JFL are raised in those applications. An issue common to each of them is the use of a coded keypad on the external doors to the facility. In one of the cases (2015/384472), similar to JFL's situation, coded keypads are also utilised on the doors of the dementia-specific unit in which the resident resides. None of these residents have any family or friends involved in their lives.
In addition, applications seeking the appointment of a guardian for residents of a different NSW aged care facility were also received by the Tribunal (2009/474871 and 2018/226238). These applications raised similar, although not identical, issues in relation to the applications made on behalf of the ACF. However, the issue that is common between them is the use of a coded keypad on the external doors to the facility. The applicant's understanding in those two matters was also that a guardian needs to be appointed for those residents in order for lawful consent to be provided for the use of restraint, as a result of the Quality of Care Principles.
In order to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)), we note the following:

Separate representatives were appointed for each of the six people in relation to whom applications for the appointment of a guardian were made. Ms Linda Rogers, solicitor, appeared in this role in relation to each person
Procedural directions were made in similar terms in relation to each of the six applications with the result that written submissions were able to be filed by the separate representative and the legal representative for the Public Guardian that addressed the issues common to each of the six applications
The hearings of the applications made in relation to the residents of the ACF commenced on 17 August 2020 and were adjourned on a part heard basis to 12 October 2020. On this latter date, the two applications from the other NSW aged care facility were also listed for hearing. This enabled issues common to each of the six applications to be addressed in a manner that reduced duplication and enhanced efficiency whilst also ensuring that the details and circumstances of each individual and the application in relation to each of them was considered on its own merits.

[3]

The hearing

Due to the restrictions imposed by the COVID-19 pandemic, the hearings on 17 August 2020 and 12 October 2020 proceeded without any of the participants appearing in person. Instead parties and their representatives participated by telephone and videoconference.
At the end of these Reasons for Decision is a list of the people who participated in the hearing for JFL.
JFL did not participate in the hearings on 17 August 2020 or 12 October 2020. LZT told us that in her view JFL would be unable to participate in the hearing due to the extent of her cognitive impairment.
The separate representative told us that she attempted to speak with JFL by telephone prior to the hearing date in August 2020 but JFL declined to speak with her. The separate representative submitted that we should proceed in JFL's absence.
We note that the Reasons for Decision of the Tribunal on 24 July 2019 made reference to JFL's involvement in that hearing as follows: [13] [Ms Y] stated that [JFL] had declined to participate in the hearing, which was conducted by telephone. [Ms Y]'s evidence was that she has explained the nature of the proceedings and has encouraged [JFL] to attend. However, [JFL] has a very limited understanding and is unable to communicate her views verbally. [JFL] is resistive to care, and this is consistent with her refusal to take part in the phone call.
We were satisfied that JFL was provided with the opportunity to participate in these proceedings. We note that the applicant does not believe that JFL would be able to participate meaningfully in these proceedings and that evidence is consistent with the evidence before the Tribunal as outlined in the extract of the Reasons for Decision of the Tribunal of 24 July 2019. We note that the separate representative submitted that the hearing could proceed despite JFL's absence and we, therefore, decided to proceed with the hearing.

[4]

Is JFL a person for whom a guardianship order could be made?

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 the person 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).
The documentary evidence provided to us, including material completed by JFL's general practitioner, Dr X, confirms that JFL has a diagnosis of Alzheimer's disease as well as depression and anxiety. In a written assessment form completed on 3 January 2020, the then Centre Manager recorded that JFL participated in a cognitive checklist. JFL scored 4 on this test which LZT says indicates "severe impairment".
An extended care plan prepared in April 2020 indicates that JFL: 1. requires full-assistance with all aspects of her personal hygiene 2. requires continence aides during the day and night 3. is reliant on staff to assist her to remember to use the toilet as she is unable to identify when she needs to do so 4. has a poor appetite and requires a fortified diet for weight-gain 5. has a strong aversion to any food that is orange in colour and all staff have been directed to removed anything that is orange in colour from any food that is provided to her. If this does not occur, we were told that JFL will throw any orange-coloured food or drink off her plate.
LZT gave oral evidence that in recent months JFL had deteriorated significantly in terms of her cognitive functioning.
According to LZT's evidence and the material available to us, JFL has, for a lengthy period of time, exhibited agitated and at times aggressive behaviour towards others. According to LZT's evidence this very recently escalated and on 29 September 2020 JFL experienced "an episode of rather intense physical aggression and agitation…, where [JFL] was…screaming and kicking at wall and doors and [being] very physically aggressive with staff". Following these events, JFL was reviewed by Dr W, Psychiatrist with the Older Persons Mental Health Service, who has prescribed Mirtazapine 15mg, to be taken nightly.

[5]

Should the Tribunal make a guardianship order?

The real issue in contention in these proceedings was whether a guardian should be appointed for JFL in order to make decisions about any of the following matters: 1. Advance care planning relating to end-of-life decision making; 2. The use of psychotropic medications; 3. The use of coded keypad in order to exit the memory support unit in which JFL resides as well as the use of coded keypads at all exits of the ACF.
In deciding whether or not to make a guardianship order for JFL, we were required to consider the factors listed in s 14(2) of the Guardianship Act, relevantly the views (if any) of JFL, a spouse and unpaid carers (if any), the importance of preserving JFL's existing family relationships and cultural and linguistic environment, and the practicability of services being provided to JFL without the need for the making of a guardianship order.
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 may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
For the reasons previously outlined we were unable to ascertain JFL's views about these matters. We understood that JFL has been married in the past but no longer has a spouse. The evidence also indicated that no-one is currently involved in JFL's care other than paid service providers.
We were not advised of any family relationships or cultural or linguistic matters that would be affected by the making of a guardianship order.
We took into account the evidence that JFL has had important services, including her accommodation and health care needs, met at the ACF. The material before us indicated that JFL became a resident of the ACF at a time when the Public Guardian was appointed as her guardian with an accommodation function.
Whilst the Public Guardian also had decision making authority about JFL's medical treatment up until 24 July 2019, it does not appear that anyone with legal authority has been providing consent to her major medications since that date.
We had to consider whether there were other services and aspects of JFL's life that would benefit from the appointment of a guardian having regard to the principles set out in s 4 of the Guardianship Act.

[6]

End-of-life decision making

The application sought the appointment of a guardian for JFL so that healthcare planning could be undertaken, including end-of-life planning that could involve consideration of a "not for resuscitation order". The Tribunal was provided with a document headed "The [charitable organisation] - Advance Care Directive" ("ACD") which had not been filled out. LZT explained that advance care planning for JFL and other residents has been strongly encouraged by public health agencies and the local area health district especially during the COVID-19 pandemic. They also noted that JFL has suffered from significant decline in her condition due to dementia in the past months and her general frailty had increased.
The separate representative submitted that the evidence did not indicate that JFL had specific health issues that would give rise to the need for end-of-life decision-making at this time. She noted that healthcare planning for JFL could take place with the facility obtaining guidance from JFL's treating medical practitioners. The separate representative noted that the evidence did not appear to weigh in favour of a guardian being appointed to decide that JFL should not be resuscitated if she went into cardiac arrest as it did not seem to be a decision that needed to be made at this point.
Ms V, on behalf of the Public Guardian, agreed with the separate representative's submission.

[7]

Conclusion - end-of-life decision making

The evidence clearly indicated that JFL is not capable of making a valid ACD. Nor could an appointed guardian make an ACD on her behalf.
A guardian appointed with a health care function does, however, have the authority to make decisions in connection with health care that includes decisions to withdraw life sustaining treatment (FI v Public Guardian [2008] NSWADT 263, [51]).
However, on the basis of the evidence presented in this case, JFL does not appear to be at a stage in her life that would necessitate a guardian being appointed with this function at this point in time. Whilst the evidence clearly indicates that JFL's physical health has declined and she was described as frail by the applicant, she is under the regular review of her general practitioner, has access to allied health professionals to monitor, amongst other things, her dietary intake, and an extended care plan is in place, and is regularly reviewed, to manage her general health and care.
We concluded that it is unnecessary to appoint a guardian in relation to decision making about JFL's health care including end-of-life decision making.

[8]

Psychotropic medications

As previously outlined, JFL has a range of complex health issues including depression, anxiety, lupus, recurrent urinary tract infections, gastro-oesophageal reflux disease and seizure disorder. From the medical charts provided, her medications include a number of minor medications. Midazolam is also prescribed on a PRN basis in the event that JFL experiences a prolonged seizure.
LZT gave evidence that JFL had been prescribed Risperdal since October 2019 due to behavioural issues related to her diagnosis of Alzheimer's dementia. These behaviours include verbal and physical aggression, paranoia, wandering, being socially disinhibited and quick to anger. We were told that this medication is regularly reviewed by JFL's general practitioner. Unfortunately we did not have the benefit of evidence directly from JFL's general practitioner to gain additional clarity about the purpose of this medication and whether some of the health issues JFL experiences, such as paranoia, along with her history of anxiety and depression, could also be conditions that may lead to the use of risperidone.
LZT acknowledged that the use of Risperdal can increase JFL's risk of falls. This is addressed in her falls prevention care plan and staff closely monitor JFL's whereabouts due to this issue.
On 14 January 2020 the Dementia Behaviour Advisory Service ("DBMAS") undertook a review of the behavioural strategies utilised by staff of the ACF in order to address some of the behaviours JFL was experiencing. We were provided with written evidence outlining the results of the assessment conducted by the DBMAS which outlined a number of non-medication-based behavioural strategies.
We were also provided with copies of extended care plans since this time and that up until August 2020 focused specifically on the areas of JFL's cognition, mental health and behaviour management. This material sets out a number of detailed strategies utilised by the aged care facility to address some of these behaviours of concern, or "changed behaviours" exhibited by JFL.
Evidence was given at the hearing that since October 2020, JFL has been prescribed Mirtazapine to address an escalation in her physical aggression and agitation. This medication was prescribed following an escalation in the behaviours that JFL was exhibiting that included "screaming and kicking at walls". LZT told us that since this medication was administered, the extreme and unpredictable behaviours have decreased although JFL has continued at times to be verbally aggressive towards others. LZT told us that despite describing her as otherwise frail, JFL gets out of bed and essentially due to her aggressiveness, "nobody stands in her way".

[9]

Conclusion - medications

Under s 4 of the Quality of Care Principles "chemical restraint" is defined as "a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition". In VZM (at [57(4)]), it was determined that the definition of "chemical restraint" in the Quality of Care Principles should be adopted as an appropriate definition by the Tribunal as it "is consistent with the Tribunal's use and understanding of the use of medication or other chemical substances as a restrictive practice to manage a person's behaviour rather than to treat a medical condition (HZC, [71]-[98])".
We had to determine whether the medications administered to JFL constitute medical treatment under Pt 5 of the Guardianship Act or constitute the use of a restrictive practice involving chemical restraint.
The resolution of this issue requires consideration of a person's individual circumstances and the evidence provided to the Tribunal about the reason for the administration of the medication. Wherever possible, this should involve evidence directly from the prescribing specialist and if no specialist, the person's general practitioner.
In relation to JFL, we did not have the benefit of evidence directly from the prescribing practitioner to clarify the specific symptoms that risperidone is prescribed to address. The written evidence states that JFL suffers from paranoia. If the risperidone is being used to treat the paranoia which was precipitating her behavioural issues then it would not be considered to be a chemical restraint. However, the written material and oral evidence given by the applicant clearly indicated that it is her view and her understanding that it is also the view of the prescribing doctor that this medication was, and continues to be, prescribed to address the behavioural issues that JFL experiences as a result of dementia. This includes periods of aggressiveness and agitation. On balance and taking into account all of the available evidence, we concluded that risperidone is likely being administered to influence JFL's behaviours and is therefore likely being utilised as a chemical restraint.
Similarly, in relation to the use of mirtazapine, the written evidence states that JFL has underlying depression and anxiety, and it may be being used to treat these conditions with these conditions thought to be the cause of her recent behaviour change. However, we concluded that given that this relatively recent medication has been described as being administered to stabilise JFL's behaviour and modify it when it escalates to a challenging level, that it also likely constitutes a chemical restraint.

[10]

Coded keypads

The applicant gave evidence that JFL has resided in the memory support unit at the ACF since 16 April 2019. Her move into that unit occurred at a time when JFL was subject to the guardianship order that had been made on 25 July 2018 and pursuant to which the Public Guardian was appointed as JFL's guardian. The guardianship order ended on 24 July 2019 and the associated Reasons for Decision state that at the time of the hearing in July 2019 JFL was living in the dementia area of the facility ([8]) but also that the Public Guardian "has not made any decisions other than confirming JFL's permanent placement at the ACF" ([15]). This suggests that the consent sought from the Public Guardian was limited to the decision about JFL's long-term placement rather than her move to the dementia specific ward within the ACF.
The evidence given by LZT, which was not disputed by any other participant, is that the memory support unit is a secure unit separated from the general population area of the ACF and requires the entry of a passcode into a coded keypad to exit the unit. None of the residents of the unit, including JFL, are given the passcode as it is intended that these residents may only leave the unit under the supervision of a staff member. The basis for this approach is the view that to allow residents of the unit to leave the unit unaccompanied would place themselves, or others, at risk.
The lay-out of the memory support unit allows residents' free access to an outdoor courtyard area as well as a kitchenette and dining room area.
The applicant also gave evidence about the use of coded keypads on all exits of the general population area of the ACF. This evidence was in the same terms as the three other matters heard on the same date as this application concerning JFL. This evidence, which was not disputed by any other participant, is that exit from the ACF may also only occur through a front door and an outer gate that are locked by a coded keypad. The passcode for both coded keypads is written next to the coded keypad on the outside of the outer gate and the outside of the front door of the facility. It is not written next to the coded keypad inside the facility next to the front door or inside the outer gate. A swipe card is given to some residents of the facility and some family members of residents. The use of a swipe card enables the front door and outer to be opened without utilising the coded keypad.

[11]

Finding's in relation to JFL's residential circumstances

Having regard to the written and oral evidence provided by the original applicant and substitute applicant, both of whom held and currently hold senior management positions at the ACF, and noting that these factual matters were not disputed by any other party or separate representative, unless otherwise noted we accepted that the following matters were established to the requisite civil standard. 1. JFL has lived in the memory support unit since 16 April 2019. All exits from memory support unit require the entry of a passcode into a coded keypad. 2. JFL has not been given the passcode to exit the memory support unit. She would be unable to operate the keypad even if she were given the passcode due to the extent of her cognitive impairment. 3. JFL was placed in the memory support unit due to her tendency to wander and the potential for her to be aggressive towards other residents and staff. 4. According to LZT it is the "only place that JFL can be safely placed in the building". 5. There was no evidence that JFL leaves the memory support unit. According to the evidence, she is able to get out of her bed when she wishes to. She spends her time walking around the unit and also has access to the outdoor courtyard area that forms part of the unit. 6. To LZT's knowledge, JFL has never asked to leave the memory support unit. If JFL were permitted to leave the unit to go into the general area of the ACF, she would need to be supervised by a staff member and would be returned to the unit. This is because of her behaviours of concern and the risk she would potentially pose to herself and others if she were to go into the general area unsupervised. 7. As previously noted, JFL had an appointed guardian who consented to her permanent placement at the ACF. However there is no indication that the Public Guardian was involved in the decision to place her in the memory support unit. JFL currently does not have an appointed guardian. Nor does she have any family or friends involved in her care. Currently no-one has the formal legal authority to make decisions on her behalf. The reality is, however, that as a result of the impact of JFL's cognitive impairment on her decision-making ability and the absence of any other person, family or friend, to take an active role in her life, the management of the aged care facility is left with little option but to make decisions on JFL's behalf on an informal basis and do so on the basis of their understanding of the duty of care that they owe to her. This includes decisions in relation to the circumstances in which she was placed into the memory support unit, is prevented from leaving the unit, the circumstances in which she is permitted to leave that unit and the requirement that return to that unit should she leave it. 8. To LZT's knowledge, JFL has not left the ACF for some time. The evidence confirmed that she has not been provided with passcode to exit the front door or gate of the facility and nor does she have a swipe card. The evidence was that JFL would not be given the means to exit the facility due to her behaviours of concern. This would pose a risk to others and to JFL if she were to leave the facility of her own accord.

[12]

Findings in relation to physical restraint

Applying the principles relevant to this matter set out above, we find that JFL lives in an environment in the memory support unit in which she is prevented from leaving by way of a coded keypad. JFL does not have access to the passcode. Nor does she have any other means of exiting that unit unless she is permitted to do so by a staff member.
On the available evidence JFL has not left the memory support unit for some time but if she were to leave, it could only be under the supervision of a staff member. She would be required to return to the locked unit.
Whist JFL is able to go into the outdoor courtyard area that forms part of the memory support unit, she is still restricted to that area and that of the memory support unit. There are no other means of exit from that unit.
Further to this, the memory support unit is located within the general residential area of the facility. This is an environment in which the door and the front gate are locked at all times unless someone is passing through them. The only way to unlock the door and gate is either by entering a passcode into a keypad or passing a swipe card over a sensor. JFL does not have access to either the passcode or a swipe card and on the available evidence would be unable to do either of these things due to the extent of her cognitive impairments. There are no other means of exit from the facility.
We are satisfied that the conditions under which JFL resides at the facility involve a total restraint on her freedom of movement as she is unable to unlock the door of the memory support unit or the front door and gate of the facility. JFL is not able to exit the memory support unit unless permitted to do so by a staff member. If she were to exit the unit, she would be unable to do so unless she was accompanied and would be returned to the facility if she left. The same restrictions apply in relation to the general area of the facility.
We find that JFL is restrained even though we are satisfied that she is unaware of being restrained and, on the available evidence, has not asked to leave the memory support unit or the facility or attempted to leave these areas of her own accord. She is restrained even though physical force is not required to prevent her from leaving. We arrive at these findings bearing in mind that the restraints placed on JFL's freedom of movement are so placed with the intention of ensuring her safety as well as the safety of others. On the basis of the authorities set out in SZH, as the tort of false imprisonment is one of strict liability, lack of fault, in the sense of absence of bad faith, is irrelevant.

[13]

Is JFL's physical restraint justified?

We find that JFL is unable to give her own informed consent to her restraint.
We considered whether the restraint is otherwise authorised, justified or excused by statute or at common law. As Allsop P observed in Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 ("Darcy") at [2]: [t]he question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law.
There are circumstances where a person can be physically restrained in a lawful way, for example, under the provisions of the Mental Health Act. It was put to us on behalf of the Public Guardian that, as we understood it, the circumstances in which a person is placed in a facility, such as the circumstances in which JFL was placed at the ACF, can provide justification. As we understood the submission, the consent provided by the Public Guardian to JFL's placement at the aged care facility, with the knowledge that it was a facility which utilised coded keypads, provided a legal basis for JFL remaining at the aged care facility and on this basis any detention is justified.
We did not accept this submission. Whilst we accept that the Public Guardian provided consent for JFL's permanent residency at the ACF, this is, in our view, distinct from making a decision or providing consent about restraint on an ongoing basis. It is also distinct from a decision about placement in a locked ward with the intention that the person is prevented from leaving that environment without the permission of staff members.
In SZH at ([140]-[147]) we set out the legal principles concerning the common law doctrine of necessity that may be relied on in limited circumstances to justify what may be otherwise regarded as a trespass to the person.
In summary, the defence of necessity to an action in trespass is available only if a state of "imminent peril" is demonstrated and the steps taken in response were reasonably necessary at the time they were taken (State of New South Wales v McMaster [2015] NSWCA 228, [216]-[225] (Beazley P, with whom McColl and Meagher JJA agreed); State of New South Wales v Riley [2003] NSWCA 208, [84]-[85] (Hodgson JA, with whom Sheller JA and Nicholas J agreed).

[14]

Should a function be included in a guardianship order for JFL in relation to physical restraint?

In considering which decision-making functions to include in a guardianship order for JFL (Guardianship Act, s 16(2)(b)), we had to consider whether our finding that JFL's circumstances could constitute the tort of false imprisonment should lead us to exercise our discretion to provide a guardian with decision making authority to give or withhold consent to his restraint. We had to do so having regard to the principles set out in s 4 of the Guardianship Act.
We have carefully considered the proposition put on behalf of the Public Guardian that there is no utility in appointing a guardian in these circumstances, the argument being that "what decision could be made that isn't already being made" and would amount to "rubber stamping".
As noted in VZM (at 60], accepting this position potentially exposes providers to civil liability unless the practice is authorised, justified or excused by law.
More fundamental in our view, however, is that accepting this argument would not be an appropriate approach having regard to the principles set out in s 4 of the Guardianship Act for the following reasons.
It does not promote JFL's right to live a normal life in the community (Guardianship Act, s 4(c)) if her living arrangements constitute false imprisonment. Other members of the community do not expect to be restrained in this manner.
Nor does continuing to live in such a situation promote JFL's freedom of action: Guardianship Act, s 4(b).
Weighing against the appointment of a guardian could be the argument that appointing a substitute decision-maker and thereby removing decision making authority from JFL in itself restricts JFL's freedom of decision and action rather than promoting it. However we note and agree with comments made in MAQ [2016] NSWCATGD 70 at [34] that: …it is flawed logic to suggest that where the nature of the subject person's decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the "least restrictive option". Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions.

[15]

What function is appropriate - accommodation or physical restraint?

For the reasons set out in SZH at [163]-[167], we decided that it is ALSO appropriate to describe the function of guardianship in this matter as one of a restrictive practice involving "physical restraint", as that term is defined in s 4 of the Quality of Care Principles, rather than as an accommodation function. As noted in VZM at [57(2)], consistency in a way definitions are applied in the aged care arena and within the Tribunal "would promote the welfare and interests of people in relation to whom restrictive practices are being used in residential aged care facilities in NSW".

[16]

Conditions

The Tribunal in HZC provided (at [32]-[36]) a brief history of the nature of restrictive practices and the role of the Tribunal. This included recognition that the Tribunal's jurisprudence developed in the context of applications being made in relation to people who engage in "behaviours of concern" which involve physical or other risks to themselves and others and that responses needed to be developed to reduce or remove those risks (HZC, [32]). The development of behaviour support plans to address behaviours of concern form a critical part of clinical practice around these issues. When appointing a guardian to authorise the use of restrictive practices, the Tribunal has traditionally imposed conditions upon the appointed guardian's authority to do so (pursuant to s 16(1)(d) of the Guardianship Act). As noted in HZC (at [100]), these conditions have "usually been framed such that an appointed guardian may only consent to the use of restrictive practices to address challenging behaviours within the context of a comprehensive positive behaviour plan". More recently, in the case of recipients of services from NDIS service providers, the Tribunal has reframed the relevant condition so that it more closely equates with the regulatory requirements imposed by the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (HZC ([101]).
We have found that JFL exhibits behaviours that have led to the use of medications that could be regarded as chemical restraint. The evidence also indicates that these issues have led to her placement in the memory support unit of the ACF. She is also restrained, as we have found, by her placement in the ACF more generally.
Much has been said about the inconsistency in the legislative protections offered around the use of restrictive practices under the NDIS (Restrictive Practices and behaviour Support) Rules when compared to the Quality of Care Principles (see, for example, the Royal Commission into Aged Care Quality and Safety's Interim Report: Neglect (Vol 1), p 215 ("Interim Report"). See also Royal Commission into Aged Care Quality and Safety's Counsel Assisting's Final Submissions Proposed Recommendation 29: Regulation of Restraints. This is particularly the case concerning the obligation placed on particular providers under the NDIS scheme to engage an approved 'behaviour support practitioner' as well as the development and lodgement of a behaviour support plan. The Interim Report describes the Quality of Care Principles "fall[ing] well short of this approach" (p 215).

[17]

Who should be appointed?

In the absence of any other person available to be considered in the role of guardian, we had no option but to appoint the Public Guardian as JFL's guardian.

[18]

Length of the order

The term of an initial guardianship order is usually for a period not exceeding one year: Guardianship Act, s 18(1)(a). However, an initial order may be made for up to three years if the Tribunal is satisfied that the person has permanent disabilities, is unlikely to become capable of managing his or her person and there is a need for an order longer than one year: Guardianship Act, ss 18(1A)-(1B).
The separate representative suggested that a guardianship order for a longer period than one year was appropriate because there would be an ongoing need for a guardian to authorise JFL's detention.
The Public Guardian did not comment on the potential length of an initial order.
We decided to make a guardianship order for three years. We were satisfied that JFL has permanent cognitive impairment. She is not going to become capable of managing her person and there is a need for an order longer than one year. This is because a substitute decision-maker will be needed to make decisions about the circumstances in which she is living on an ongoing basis.
In addition, JFL is currently prescribed a number of major medications, some of which may be being use as a chemical restraint, and another in relation to her seizure disorder, that will require the appointment of a substitute decision on an ongoing basis.

[19]

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: 17 December 2020

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