JFL [2020] NSWCATGD 32 - NSWCATGD 2020 case summary — Zoe

NSWNSWCATGD

JFL [2020] NSWCATGD 32

[2020] NSWCATGD 32

NCAT Guardianship|2020-10-12|Before: Emeritus Professor P, Foreman AM

View original source

At a glance

Source facts

Court

NCAT Guardianship

Decision date

2020-10-12

Before

Emeritus Professor P, Foreman AM

Catchwords

Sch 2

Source

Original judgment source is linked above.

Catchwords

Sch 2

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.

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.
On 12 October 2020 the Public Guardian sought and was granted leave to be legally represented in each of the six proceedings. The application for leave was supported by the applicant and the separate representative. The Public Guardian was represented by Mr U, Counsel, who was instructed by the Crown Solicitor.

We reserved our decision in relation to each of the six matters on 12 October 2020. We issued our order in relation to the application concerning JFL on 15 December 2020 and these are our Reasons for Decision.
We note that there is nothing in the Aged Care Act or the Quality of Care Principles that is binding on the NSW Civil and Administrative Tribunal (NCAT) when considering whether it should appoint a guardian with the function of making decisions about restrictive practices or restraints (VZM [2020] NSWCATGD 25 ("VZM") at [57(1)]; HZC [2019] NSWCATGD 8 ("HZC") at [44]). It is nevertheless clear that the regulatory scheme outlined in the Quality of Care Principles prompted the making of these six applications to NCAT and continues to form the basis of an increasing number of applications being received by NCAT.

[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.
LZT expressed her view that JFL was someone who, due to her disability, was totally or at least partially incapable of managing her person.
The separate representative agreed with that view, saying "the evidence [was] compelling that [JFL] is a person in need of a guardian". Ms V on behalf of the Public Guardian agreed that JFL is a person for whom a guardianship order could be made.
Based on the evidence of the extent of her cognitive impairment arising from Alzheimer's dementia, which is described as "severe", we were satisfied that JFL is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help (her) function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
We were satisfied that JFL is a person for whom a guardianship order could be made.

[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.
We address in turn the evidence and our findings in relation to each of these matters.

[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".
Ms V on behalf of the Public Guardian submitted that the evidence supported the view that the medical treatment that JFL is receiving, in the form of the medications outlined, is treatment for the behavioural and psychological symptoms of dementia ("BPSD") and should not be properly regarded as chemical restraint. Rather it constitutes treatment for the condition of dementia.
The separate representative submitted that the medications taken by JFL, specifically risperidone and mirtazapine, constitute chemical restraint as they are given to control JFL's aggressive behaviour. The separate representative submitted that the evidence of the recent behavioural episode, and the prescription of mirtazapine in response to that, was indicative that the medication constitutes a chemical restraint.

[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.
Evidence was also given that midazolam has been prescribed for JFL in the event that she experiences prolonged seizures. Midazolam is a major medication for the purposes of Pt 5 of the Guardianship Act and its lawful administration requires the informed consent of the person to whom the medication is being administered. We accepted the evidence that JFL is unable to give this consent and as there is no person responsible who could give consent on her behalf, we concluded that a guardian should be appointed with the authority to make decisions about medical treatment for JFL in relation to her seizure disorder.

[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.
These measures are taken to ensure the safety of residents who are unable to utilise the coded keypad or swipe card and who, due to cognitive and/or physical impairment, would be at risk if they left the facility.

[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.
In the matter of SZH [2020] NSWCATGD 28 ("SZH"), we set out (at [78]-[111]) a summary of the written and oral submissions made in relation to the use of coded keypads by the separate representative and the Public Guardian in relation to these proceedings and the other proceedings heard on the same day as this application concerning JFL.
We had to consider whether or not JFL's circumstances could constitute a practice that would be unlawful under common law, such as false imprisonment. In the matter of SZH we set out our understanding of the legal principles concerning the tort of false imprisonment ([112]-[126]) and provided a summary of the principles, as we understood them, relevant to our consideration of that matter ([127]). In our view the same legal principles apply to the circumstances of JFL as they did to SZH. The summary of those principles is as follows: [127] Having regard to the authorities discussed above we have identified the following principles as being relevant to our consideration of this matter: (1) whether a person is restrained is a question of fact to be determined on all of the available evidence as to the person's circumstances and the nature and extent of the restraint said to be imposed upon the person's freedom of movement and liberty (Re: EUY [2019] SACAT 51 at [82]); (2) the placing of "total restraint" on the person's movement is required in order to constitute false imprisonment. That "total restraint" need bear no similarity to what might normally be described as imprisonment. Compulsion, even of the mildest kind, to remain in a place, leave only with permission and to return to the place, may nevertheless be sufficient (Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413, [153]). Any "restraint within defined bounds which is a restraint in fact may be imprisonment": (Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 44 at 53-54) (emphasis added); (3) the use of force or direct physical contact is not necessary in order to establish that a person is restrained; (4) lack of fault, in the sense of absence of bad faith, is irrelevant to whether a fact finding of detention may be made; (5) it is not necessary to find that the alleged restraint is against the person's will. A finding that restraint has occurred is possible even though the person is unaware that they are being restrained; (6) it is not necessary to find that the person has expressed a desire to end the detention, has taken active steps to do so or is physically able to do so.

[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).
In Darcy, Whealy J noted (at [188]) there "is a power to impose a temporary restraint on a person who 'has run amok and is a manifest danger either to himself or to others' (B v Forsey (1988) SC HL 28 per Lord Keith at 63, Lord Griffiths at 68)". Whilst not needing to resolve the issue of whether the doctrine of necessity justified the detention of the appellant in that case, his Honour nevertheless observed (at [190]) that "it could not be said that the doctrine of necessity could possibly extend to permit the detention of a person for the period of time Ms Darcy was kept at Kanangra. There is no authority that would allow such a lengthy detention."
Having regard to these authorities we have taken a view that it is unlikely that the common law defence of necessity is available in relation to the restraint of JFL which involves a situation of long-term residential care in a locked memory support unit within an aged care facility.
There was no other common law defence or justification put to us as to form a possible basis for JFL's restraint and we find that there is none.
As a consequence we find that JFL's circumstances could constitute the tort of false imprisonment.

[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.
In our view, it would promote JFL's welfare and interests (Guardianship Act, s 4(a)) for a guardian to be appointed to decide upon the circumstances of his restraint. Due to the impact of JFL's cognitive impairment, she is unable to give or withhold consent to the circumstances in which she is living. It is appropriate and in her interests for a guardian to have the authority to do so in her stead. Providing a guardian with this authority recognises not only the fundamental importance of JFL's right to freedom of movement and liberty, but also ensures that any restriction on those rights (Guardianship Act, ss 4(b)-(c)) is properly considered by someone with the legal authority to do so in circumstances where JFL is unable to do so on her own behalf.

[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).
However imperfect it may be, the realities of a scheme regulating the use of restrictive practices within the aged care sector is a matter that we nevertheless consider we should have regard to in considering the conditions to be imposed upon a guardian.
Schedule 2 of the Quality of Care Principles sets out the Aged Care Quality Standards. These are described as "standards for quality of care and quality of life for the provision of aged care" (Aged Care Act, s 54-2(1)). Section 15F of the Quality of Care Principles (dealing with the obligations placed on approved providers in relation to the use of physical restraint) and s 15G of that Act (dealing with the obligations placed on approved providers in relation to the use of chemical restraint) each require that an approved provider ensures that the "care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2" identifies certain matters in relation to the use of restraint (ss 15F(2)(c) and 15G(2)(b) of the Quality of Care Principles).
Having regard to the principles that paramount consideration should be given to JFL's welfare and interests (Guardianship Act, s 4(a)) and that her freedom of decision and freedom of action should be restricted as little as possible (Guardianship Act, s 4(b)), and also having regard to the relevant provisions set out in ss 15F and 15G of the Quality of Care Principles and the Aged Care Quality Standards set out in Sch 2 of the Quality of Care Principles, we impose the following conditions upon JFL's appointed guardian when utilising the authority to authorise the use of chemical and physical restraint: 1. The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence JFL's behaviour: 1. as a last resort to prevent JFL harming herself or others; and 2. in accordance with a care and services plan that incorporates: 1. the behaviours that are relevant to the need for the restraint; 2. reasons why the restraint is necessary; 3. the alternatives to restraint that have been used (if any); and 4. provision for review, including by an appropriate medical specialist/s

JFL [2020] NSWCATGD 32

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Legislation Cited (6)

Cases Cited (9)

Cited By (6)