KBU [2020] NSWCATGD 9

The hearing

1. A list of the parties to the application and those who attended the hearing is at the end of these Reasons for Decision. [Appendix removed for publication.]
2. KBU was present at the hearing which was conducted by telephone. He indicated, when we asked, that he could hear us but, otherwise, he was unable to make a contribution.

What does the Tribunal have to decide?

1. The Tribunal may make a guardianship order in respect of a person if, after conducting a hearing, it is satisfied that he or she is a person in need of a guardian: s 14(1) of the Act.
2. A person is "in need of a guardian" if, because of a disability, he or she is totally or partially incapable of managing his or her person: s 3(1) of the Act.
3. A "person who has a disability" includes a person who is intellectually, physically, psychologically or sensorily disabled and who, because of his or her disability, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
4. We have to decide:

• Is KBU someone for whom the Tribunal can make a guardianship order because he is a person "in need of a guardian"?
• If so, should the Tribunal make a guardianship order and, if so, what order should be made?
• If an order should be made, who should be the guardian and how long should the order last?

1. In making any decision under the Act, we must observe the principles in s 4 of the Act. They include that KBU's welfare and interests should be given paramount consideration, his freedom of decision and action should be restricted as little as possible, his views should be taken into consideration, the importance of preserving his family relationships and cultural and linguistic environments should be recognised, and he should be protected from neglect, abuse and exploitation.

Is KBU someone for whom the Tribunal can make a guardianship order?

1. Every person who is the subject of an application is presumed to have capacity to make their own decisions unless there is sufficient evidence to rebut that presumption.
2. The Tribunal has received reports from Dr Y and Dr X, consultant psychiatrist at the public hospital, detailing KBU's recent medical history and admissions to hospital.
3. Dr Y reports that, in July 2019, KBU was diagnosed with moderately advanced mixed vascular and Alzheimer's dementia with some behavioural and psychological symptoms of dementia (BPSD). During his admission in December 2019, he exhibited "significant BPSD with aggressive, agitated behaviour in a typical 'sundowning' pattern" that responded well to low dose (0.25mg) risperidone orally.
4. Dr X reports that KBU has "severe and risky behaviours" from his dementia which do not appear to be amenable to mitigation by behavioural interventions alone. He is not able to be engaged in discussions about his behaviours, the risks they pose and management strategies, and he lacks capacity regarding "this intervention" (by which we understand her to mean risperidone).
5. Dr Z reports that KBU scored 19/30 on an MMSE during an ACAT assessment in 2018. In May 2019, his score was 12/30. Although Dr Z does not specify the meaning of his declining scores, we are aware from other cases involving MMSE assessments that KBU's scores are consistent with advanced dementia.
6. DSU and the other family members at the hearing, and members of the treating teams from the public hospital and the aged care facility who attended the hearing, all agreed that KBU is not able to make informed decisions about his person.
7. We are satisfied on this evidence that, as a result of dementia, KBU is restricted in one or more major life activities to such an extent that he requires supervision or social habilitation in at least some areas of decision making. We are satisfied that he is a person for whom we can make a guardianship order.

Should the Tribunal make a guardianship order?

1. Even though satisfied that KBU is someone for whom a guardianship order can be made, we must still decide whether an order should be made. In doing so, we must observe the principles in s 4 of the Act, as well as the matters in s 14(2) of the Act.
2. In HZC [2019] NSWCATGD 8, the Tribunal considered whether a guardian should be appointed for a young woman with a severe intellectual disability who was a participant in the National Disability Insurance Scheme. Her "challenging behaviours" were managed by a range of means defined as restrictive practices in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). They included chemical restraint, defined in the Rules 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.
3. The Quality of Care Principles 2014 (Cth), which are made under the Aged Care Act 1997 (Cth), define chemical restraint in the same terms: s 4. The Principles impose a range of conditions on providers of care in an aged care service who propose using chemical restraint for an aged person in their care: s 15G of that Act.
4. Following HZC, the administration of medication for the purpose of chemical restraint falls outside the definition of medical treatment in s 33(1)(a) of the Act. It follows that a person with authority to consent to medical treatment, whether as a person responsible under that Act, an enduring guardian, or guardian appointed by the Tribunal, does not have authority to consent to medication for the purpose of chemical restraint.
5. It follows that it is not within the authority given to DSU by the enduring power of guardianship to give or withhold consent to the administration of risperidone for the purpose of chemical restraint.
6. In HZC, the Tribunal said (at [97]) that, even if it is possible for the Tribunal to treat chemical restraint as a medical issue, it is preferable, for the reasons it outlined, that it be dealt with by the appointment of a guardian with chemical restraint as a restrictive practice function. We agree.
7. As KBU is unable to give informed consent to the administration of risperidone, a guardian is needed to give or withhold consent on his behalf.
8. Dr Y reports that, during his initial admission to hospital, KBU's behaviour problems responded well to low dose (0.25mg) oral risperidone. He was discharged to the aged care facility on 10 December 2019 with oral risperidone recommended as a "short term regular medication during his initial period of settling in to his new home".
9. One week later, KBU was re-admitted to hospital because of aggressive and agitated behaviours that the nursing home staff felt unable to manage. A pattern was noticed that, without the low dose risperidone, KBU would become distressed, with delusional, paranoid thoughts about his environment and his carers, and he would become aggressive towards staff and fellow residents.
10. Dr Y reports that, after 10 days in hospital where he was medicated with risperidone, KBU's distress, agitation and aggression abated in combination with non-pharmacological measures. We understand those measures to be as set out in an undated document headed "Behaviour Management Plan - KBU".
11. On 3 January 2020, KBU's behaviour escalated again after he refused to take his mediations including risperidone. He became violent and an ambulance had to be called to take him back to the public hospital. Dr Y reports that KBU was distressed and, in consultation with his family, it was decided it was appropriate to continue the oral risperidone and to trial the anti-depressant citalopram.
12. Dr Y reports that, after a time, KBU was largely settled on the ward and had not required any parenteral sedating medication as previously. He continued occasionally to refuse his medications but he could not verbalise his reasons. On those occasions it was decided in consultation with DSU that his medication should be given with food and KBU was told the food contained "his medicine".
13. Dr Y has provided details of KBU's medications while in the public hospital which Ms W, clinical dementia care manager at the aged care facility, confirmed at the hearing remain essentially unchanged. The regular low dose of risperidone is still given, with occasional additional doses as needed. Ms W confirmed there has been only one occasion, on 1 March 2020, when KBU required an additional dose. He is now considered medically stable.
14. In relation to the use of citalopram, Dr Z confirmed that KBU has had a diagnosis of depression. Ms V, aged care clinical nurse consultant at the public hospital, confirmed at the hearing that citalopram is being administered for depression and not in itself as a means of managing KBU's behaviour. That appears to be different from what Dr Y and Dr X reported while he was in the public hospital and different from the Behaviour Support Plan referred to below. However, although not entirely clear, it appears that citalopram is now considered treatment for KBU's depression rather than as a means of chemical restraint.
15. Dr Y reports that, without a guardian with authority to give or withhold consent to the administration of risperidone to manage KBU's behaviour, his distress associated with his BPSD is unlikely to be well treated and will contribute to a significant loss of quality of life for him. Dr Y proposes that risperidone be used on a short term basis, for less than three months, during his initial period of settling in to the aged care facility.
16. DSU and other members of KBU's family at the hearing all supported an order with appropriate powers.
17. Considering the distress that the symptoms of his dementia are causing KBU, and that they settle with risperidone, we are satisfied that it is in his best interests that a guardian be appointed to decide whether to give or withhold consent to its administration, subject to the conditions below. For the reasons below, we are satisfied that the order should include additional functions and authority.

What order should be made and who should be appointed?

1. As the Tribunal observed in HZC (at [96] and [100]), the use of psychotropic medication to control behaviour has the potential to seriously infringe upon a person's rights. Where the Tribunal has made orders allowing a guardian to authorise the use of restrictive practices, it has usually done so within the context of a comprehensive behaviour plan so as to strike a balance between the person's best interests and welfare, and the obligation to ensure that his or her freedom of decision and action are restricted as little as possible.
2. The aged care facility has provided a copy of a Behaviour Support Plan prepared by Dr Z in consultation with others in the treating team which details non-pharmacological interventions developed since KBU moved into the aged care facility. It refers to both risperidone and citalopram prescribed at the public hospital to "assist with aggression management". According to the Plan, citalopram was reduced on 1 March 2020 by Dr U, psychogeriatrican, and is to be reviewed again on 20 April 2020.
3. The order is made subject to conditions that, firstly, the guardian may only consent to the use of chemical restraint to influence KBU's behaviour as a last resort to prevent him from harming himself or others. Secondly, consent must be in accordance with an appropriate behaviour support plan that is reviewed regularly.
4. A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend all authority of the enduring guardian for the time being: s 6I of the Act. This means that DSU's authority to make decisions concerning KBU's accommodation, health care and other services, and to consent to medical and dental treatment, is suspended while this order is in force.
5. As the person responsible for KBU under s 33A(4) of the Act, DSU may consent to his medical or dental treatment: s 36. Ordinarily, it would not be necessary to include authority to make decisions about his medical and dental treatment in the guardianship order. However, an issue arises because of the way in which KBU's medications are given to him.
6. KBU is prescribed medications for a range of physical conditions. He refuses to take any medications and for some time they have been given to him at home, in hospital and at the aged care facility, crushed up in his food. In effect, this amounts to overriding his objection to medical treatment.
7. A guardian may consent to treatment despite any objections of the patient if the guardian does so in accordance with the authority of the Tribunal given under s 46A of the Act: s 46(3).
8. The Tribunal may give a guardian authority to override a person's objections to treatment but only if satisfied that any objection is because the person does not understand the nature of, or reason for, the treatment: s 46A of the Act.
9. We discussed this requirement with DSU at the hearing and she requested the necessary authority. We are satisfied it should be conferred on her. The guardianship order therefore includes the function to consent to medical and dental treatment with authority to override any objection by KBU.
10. While KBU's accommodation appears to be settled, he is currently in respite care and a decision may still need to be made about his accommodation and about health care. We have therefore included those functions, which DSU had under the enduring power of guardianship, in the guardianship order.
11. DSU wishes to be her husband's guardian and everyone at the hearing agreed that she should be appointed. We are satisfied that she meets all of the requirements in s 17(1) of the Act and we will appoint her guardian with the functions we have described.

Length of the order

1. An initial order can be made for up to one year from the date it is made: s 18(1) of the Act. Dr Y recommended that risperidone be used during the initial period of up to three months, while KBU settles in to the aged care facility. Ms V and Dr Z advised at the hearing that it will depend on the progression of KBU's dementia whether three months will be sufficient time for him to settle in. Dr Z said they are trying to reduce and rationalise his medications generally and it is difficult to put a time frame on his settling in period.
2. We think it in KBU's best interests that we make a continuing order for six months. The order will be reviewed at the end of that time.

The application for consent to medical or dental treatment

1. LZJ initially made an application to the Tribunal for consent to medical or dental treatment on the understanding that was the appropriate application. Subsequently, she learned that a guardianship application was required. She agreed at the hearing that the application for consent to medical or dental treatment this application was unnecessary, and the Tribunal consented to its withdrawal.

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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: 28 May 2020