JUW [2023] NSWCATGD 3

The hearing

1. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]
2. JUW was present during the hearing in the company of Ms Z, pastoral carer, Ms Y, care coordinator and MBW. However due to the nature and extent of her disability she was unable to actively participate or to put her views.

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are:

• Is JUW someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?
• Should the Tribunal make a further guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

1. Section 4 of the Guardianship Act 1987 (NSW) provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.

Is JUW someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303] "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others."
3. The Tribunal was previously satisfied that JUW had a cognitive impairment resulting from dementia and as a result was exhibiting the behavioural and psychological symptoms of dementia (BPSD).
4. A Behaviour Management Plan dated 31 January 2023 and compiled by Mr X, a care coordinator, indicates that JUW was diagnosed with dementia and as a result was confused and engaged in behaviour including wandering and verbal repetitiveness.
5. There was no evidence of submission to the effect that JUW's cognitive impairment has diminished.
6. Taking into account the previous decision of the Tribunal and the lack of any more recent evidence to the contrary, as well as the contents of the Behaviour Support Plan, I was satisfied that JUW continues to have a cognitive impairment that at least partially restricts her from managing her person and her circumstances. As a result of her impairment she is restricted in accessing, evaluating and utilising information to make decisions about her lifestyle. She is therefore a person for whom the Tribunal could make a further guardianship order.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person, 2. the person's spouse, 3. the person's carer, and 1. the importance of preserving the person's existing family relationships, 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. The evidence of the Public Guardian was provided in a written report and orally during the hearing by Ms W. In the written report, Ms V provides the following information: 1. JUW had been living at an aged care facility in West Sydney until that facility was closed. In April 2022 the Public Guardian consented to her moving to her current accommodation at the aged care facility in Northwest Sydney. The Public Guardian has been advised that JUW has settled well at the aged care facility in Northwest Sydney and the Public Guardian believes there is no further need for a guardian to be appointed to make accommodation decisions for JUW or to be authorised to utilise assistance to implement accommodation decisions. 2. JUW has been placed in Memory Support Unit from which she is unable to exit of her own accord. The Public Guardian has discussed this situation with the care coordinator at the facility who has advised that MBW has consented to the implementation of an environmental restraint on JUW, and that consent from MBW complies with the requirements of the facility for consent to such restraint.
4. The Aged Care Quality of Care Principles 2014 (Cth) ("the Principles") are to the effect that where, for the primary purpose of influencing behaviour, there is a restriction placed on a resident's free access to all parts of the environment, the restriction is categorised as an environmental restraint.
5. The Tribunal has previously considered the practice of accommodating a resident in a location from which he or she is unable to exit of his or her own accord, and has been satisfied that the practice constitutes a restrictive practice as that term is used in the Principles (JFL [2020] NSWCATGD 32; FNX [2021] NSWCATGD 4). In the matter of TZD [2021] NSWCATGD 14, the Tribunal considered the effect of an amendment in the Principles by which some practices previously categorised as "physical restraint" came to be categorised as "environmental restraint".
6. Section 15FA(1)(f)(ii) of the Principles provides that where a consumer is unable to provide consent to the use of a restrictive practice, consent must be provided by a restrictive practices substitute decision maker.
7. Recent amendments contained in the Quality of Care Amendment (Restrictive Practices) Principles 2022 include the following regarding who is to be considered a restrictive practices substitute decision maker: 5B Meaning of restrictive practices substitute decision‑maker (1) An individual or body is the restrictive practices substitute‑decision maker for a restrictive practice in relation to a care recipient if the individual or body has been appointed, under the law of the State or Territory in which the care recipient is provided with aged care, as an individual or body that can give informed consent to the use of the restrictive practice in relation to the care recipient if the care recipient lacks capacity to give that consent. (2) The following table has effect if: (a) there is no such individual or body appointed for the restrictive practice in relation to the care recipient under the law of the State or Territory in which the care recipient is provided with aged care; and (b) either: (i) there is no clear mechanism for appointing such an individual or body under the law of the State or Territory; or (ii) an application has been made for an appointment under the law of the State or Territory in relation to the use of the restrictive practice in relation to the care recipient, but there is a significant delay in deciding the application.
8. The table referred to in s 5B(2) is not repeated here, because it does not apply in this matter. As noted above (s 5B(2)), the table only has effect where there is no individual or body appointed as the restrictive practices decision maker and (my emphasis) there is no clear mechanism for appointing such decision maker under the law of the State or Territory, or (my emphasis) an application has been made to appoint a restrictive practices decision maker and the application has been met with a significant delay.
9. In NSW there is a mechanism for appointing a restrictive practices decision maker, so the condition referred to in s 5B(2)(b)(i) does not apply.
10. As to the condition referred to in s 5B(2)(b)(ii), the current matter before the Tribunal is a review of a guardianship order and not an application for appointment. It is worth noting, however, that it is not within the Tribunal's jurisdiction to determine if there has been a significant delay in deciding an application seeking the appointment of a guardian to consent to restrictive practices. That is a matter for the aged care facility or applicant to consider in those cases where an application is made to the Tribunal.
11. Taking into account the circumstances as canvassed in the preceding two paragraphs, the table referred to in s 5B(2) has no operation.
12. If the table referred to in s 5B(2) were relevant, it lists a number of possible restrictive practices decision maker, including a nominee, partner, relative or friend with specific conditions attached to the appropriateness of people who might fit those categories.
13. Having considered the recent amendments as outlined above, it was my conclusion that there is an ongoing need for a guardian to consider the application of the environmental restraint to manage JUW's behaviour. In accordance with the Aged Care Quality of Care Principles, the authority to consent to such restraint is conditional upon the proposed restraint as least restrictive as possible and being proposed in the context of a behaviour support plan devised in accordance with the Aged Care Rules by an appropriate practitioner and reviewed regularly.
14. During the hearing I spoke with Ms Y, the care coordinator, who said that where there is a guardian, the facility requires the consent of a guardian for the use of an environmental restraint, but where there is no guardian, the facility accepts the consent of a family member. As is indicated above, it is my view that such an approach is not consistent with the recent Quality of Care Amendment (Restrictive Practices) Principles 2022. Ms Y was of the view that if this is the case, the facility supported the appointment of a guardian to make decisions about the environmental restraint. Ms W was also of the view that having regard to the legislation as outlined, there was an ongoing need for a guardian to be appointed to consider the environmental restraint used to manage JUW's behaviour.
15. MBW spoke to the need for JUW to remain in her current location for her own safety.
16. Taking into account the requirements of the Principles and the evidence outlined above, I was satisfied that there is a need for a guardian to be appointed to consider the environmental restraint used to manage JUW's behaviour, with the conditions noted above and included in the order.
17. Whilst the principles set out in s 4 of the Guardianship Act are to the effect that JUW's freedom of decision and freedom of action should be limited as little as possible, I am required to prioritise her best interests and welfare. I am satisfied that the order provides for critical consideration of a restraint imposed on JUW and is in her best interests and necessary for her welfare
18. JUW's husband, MBW, remains involved with her care and her lifestyle. There was no evidence that previous orders have adversely affected JUW's family relationships or her cultural and linguistic environment or that renewing the order would be likely to do so.

Who should be appointed as the guardian?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).
2. MBW declined to be appointed as the guardian as he has recently been diagnosed with an illness that prevents him from taking up that role. There being no other person proposed to be appointed as the guardian, I appointed the Public Guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.
2. I proposed making the order for three years on the basis that it is unlikely that JUW will be accommodated in other than the memory support unit over that period.
3. Ms W initially sought a shorter order on the basis that an initial consent to the environmental restraint could be made to apply for some years into the future. However, considering the conditions placed on the authority of the guardian to consent to the practice, I was not satisfied that this was the case. In my view the requirement for regular review of the appropriateness of the restraint has the effect of requiring a reconsideration of its use each time it is reviewed. In my view blanket consent is not consistent with the condition attaching the authority. Having reached that view, I made the order for three years as I am satisfied that there will be a need for ongoing consideration of the appropriateness of the environmental restraint.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2023