KXE [2024] NSWCATGD 1

The hearing and participants, and treatment of the application

1. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]
2. The hearing was conducted at the ACF. KXE attended with OGT, NZH and the ACF general manager, Mr Z. BSE gave evidence by phone.
3. The applicant does not refer to the 2023 AEG in her application. The first reference to its existence was when OGT indicated during the hearing that she and her father BSE had been appointed as KXE's enduring guardian and attorneys. She had not until then provided copies of those instruments to the ACF. During the hearing, OGT emailed the 2023 AEG and EPA to Mr Z, who then provided copies to us.
4. Part 2 of the Guardianship Act 1987 (NSW) deals with the appointment of enduring guardians. Contained in Pt 2 of that Act, s 6 provides that an "adult person may, by instrument in writing, appoint a person as his or her guardian".
5. Section 6A of the Guardianship Act states that an appointment made under Pt 2 of that Act has effect only during such period of time as the appointor is "a person in need of a guardian" and, unless revoked or suspended under Pt 2, has effect during all such periods. A person in need of a guardian is defined as a person who, because of a disability, is totally or partially incapable of managing his or her person: Guardianship Act, s 3. A person with a disability is defined to include a person who is physically and/or psychologically 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 (support to live in the community): Guardianship Act, s 3(2).
6. The Guardianship Act gives the Tribunal power to review the appointment of an enduring guardian: 6J Tribunal's review of appointment (1) The Tribunal: (a) may, on its own motion, and (b) must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an enduring guardian. … (emphasis added) In this matter, there had understandably been no application to review the 2023 AEG. We had to decide whether to review the appointment of our own motion. There is no guidance given as to how to exercise this discretion. In making any decision under the Guardianship Act, we are directed to observe the principles listed in s 4 of that Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
7. The application of these principles convinced us it was appropriate to review the appointment of the 2023 AEG. We particularly took the following factors into account: 1. KXE had made this appointment only 6 months ago. 2. The appointment appears to have been validly made and contains the certificate of the witness, Mr Y, Australian legal practitioner, that KXE appeared to understand the effect of the instrument and had executed it voluntarily in his presence. 3. We have found, for the reasons indicated below, that KXE is "a person in need of a guardian" as defined 4. The appointed guardians have assumed they are making decisions using their authority under the 2023 AEG. 5. KXE has exercised her will and preference by choosing to appoint her son and granddaughter as her enduring guardians. Making a guardianship order would suspend all authority of the enduring guardians to exercise any function under the appointment. Choosing to vary the 2023 AEG, if required by the circumstances of this application, would preserve KXE's own choice to the greatest extent possible, without compromising her welfare and interests.
8. Having chosen to review the 2023 AEG, it was no longer necessary to consider the guardianship application. We dismissed this application.

Review of Enduring Guardianship appointment - What did the Tribunal have to decide?

1. Section 6K of the Guardianship Act lists the powers available to the Tribunal on review of the appointment of an enduring guardian: 6K Action on review (1) On reviewing the appointment of an enduring guardian, the Tribunal may: (a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or (b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment. (2) The Tribunal must not revoke the appointment of an enduring guardian unless: (a) the enduring guardian requested the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked. (3) The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor: (a) an application for a guardianship order under Part 3, (b) an application for a financial management order under Part 3A, (c) applications for both such orders. (4) The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where: (a) the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or (b) the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part, (c) if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made. (5) The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal.
2. The purpose of this own motion review was to consider whether to vary the functions of the enduring guardians to enable them to make the decisions about the restrictive practices, which was the nub of this application. There was no suggestion that it was in the best interests of KXE that the 2023 AEG should be revoked, and neither BSE nor OGT had requested this.
3. We focussed therefore on whether the functions of the 2023 AEG should be varied.
4. As an initial consideration, we were satisfied that the 2023 AEG "has effect" because KXE is "a person in need of a guardian". As noted above, this is defined as a person who, because of a disability, is totally or partially incapable of managing his or her person: Guardianship Act, s 3.
5. In August 2023, geriatrician Dr X writes that KXE has a history of moderate dementia and needs assistance with all activities of daily living. Her dementia is said to be complicated with wandering behaviour. Dr X concludes that KXE does not have capacity to make decisions about environmental, physical or chemical restraints. KXE's GP, Dr W, expresses similar views in his report of October 2023, noting that KXE's slowly progressing mild dementia causes her to lack insight and judgement about her accommodation, care and services, health and medical care and financial affairs.
6. In general terms, we found that KXE's presentation was consistent with the views expressed in the professional reports. She had no real understanding of the nature of the proceedings, was aware she takes medications but could not explain their purpose. She confirmed that her granddaughter OGT helps her out a lot.
7. There was no contradictory evidence. We were satisfied on this evidence that KXE is "a person in need of a guardian", and that the 2023 AEG therefore has effect. In these circumstances, it was quite proper for the enduring guardians to rely on their authority under this instrument to make the necessary decisions for KXE.

Should the enduring guardianship appointment be confirmed? Should the functions of the enduring guardian be varied?

1. The application relates only to the need for a guardian to make decisions about the use of practices which are known as restrictive practices.
2. We were informed that KXE resides in a secure unit requiring the use of a keypad with a code to access other parts of the facility. Due to KXE's impaired cognition, she cannot operate the keypad and cannot freely come and go from the unit, or from the facility.
3. In the matter of SZH [2020] NSWCATGD 28, the Tribunal was called upon to consider whether a guardian should be appointed to make decisions about, amongst other matters, the use of coded keypads at all exits of the aged care facility. The Tribunal found that it needed to answer the following questions: "We had to consider whether or not these circumstances could constitute a practice that would be unlawful under common law, such as false imprisonment. If we found in the affirmative, we would then need to consider whether or not to include decision making authority about this particular issue in the guardianship order for SZH. [at 74 and 75]"
4. The Tribunal considered the authorities and found that the issues are to be determined in accordance with the following principles at [127]: 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. 4 at 53-54); 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.
5. The Tribunal in SZH also found there was no legal justification - such as the law of necessity, for the restraint imposed by the used of the coded exits at [140]-[150].
6. Finally, the Tribunal in SZH found that it would promote the subject person's welfare and interests to include a function enabling the guardian to make decisions about this form of restraint at [151]-[162].
7. On 1 July 2021 amendments to the Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) came into effect relating to the use of restrictive practices in residential aged care
8. In brief, the effect of these amendments is to:

• adopt the language of 'restrictive practices' rather than 'restraint' in aged care settings
• include the following in the definition of 'restrictive practice': 1. chemical restraint 2. environmental restraint 3. mechanical restraint 4. physical restraint 5. seclusion
• remove the 'consumer representative' provision and replace it with a 'restrictive practices substitute decision maker' defined as: "a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to: (a) the use of the restrictive practice in relation to the care recipient; and (b) if the restrictive practice is chemical restraint - the prescribing of medication for the purpose of using the chemical restraint; if the care recipient lacks the capacity to give that consent"

1. From 1 September 2021, new provisions came into effect concerning the need for behaviour support plans in relation to the use of restrictive practices in residential aged care.
2. The Quality of Care Principles define environmental restraint to be a practice or intervention that restricts, or that involves restricting, a care recipient's free access to all parts of the care recipient's environment (including items and activities) for the primary purpose of influencing the care recipient's behaviour.
3. We were satisfied on the evidence that the locating of KXE in an area of the facility only able to be entered or exited by used of a coded keypad which she does not know how to use amounts to an environmental restraint as defined. This is therefore a restrictive practice which, under the law, requires the appointment of guardian, if the person themselves is unable to provide informed consent. We were satisfied that KXE lacks the capacity to consent to this form of restraint.

Consideration

1. On the basis of the above considerations, we were satisfied on the evidence that: 1. There are now important decisions to be made in KXE's life about her health care and medical and dental treatment, and the use of the said restrictive practice. 2. KXE is unable to make these decisions in an informed way due to her cognitive impairment secondary to her mild dementia. 3. BSE and OGT are already authorised to make the necessary health care, and medical and dental treatment decisions for KXE using their authority as enduring guardians under the 2023 AEG. 4. Other than the restrictive practice, there are no other decisions that require the appointment of a guardian. OGT and BSE indicate they are satisfied with the care KXE is receiving at the ACF and their level of communication with staff. There are no plans for any change in her accommodation.

Can and should we vary the 2023 AEG by adding a restrictive practice function?

1. In the matter of SKN [2023] NSWCATGD 16, the Tribunal decided in similar circumstances that an Appointment of Enduring Guardian can be varied by adding a Restrictive Practices function. We respectfully agree with that approach and decision. In determining whether such a variation should be made, the Tribunal in SKN considered the following matters: 1. Whether the enduring guardians have and are likely to continue to be able and willing to discharge the functions conferred under the appointment in a manner consistent with the s 4 principles of the Guardianship Act. Among other things, those principles require that paramount consideration be given to the welfare and interest of the appointor: Guardianship Act, s 4(a). 2. Whether the enduring guardians are suitable people to exercise a restrictive practice function for the appointor 3. Whether it would better give effect to the section 4 principles of the Guardianship Act to make a guardianship order and to appoint the enduring guardians as guardians for the appointor?
2. Both OGT and BSE gave evidence at the hearing. OGT has been more involved as she lives nearby. BSE lives on the south coast of NSW. We accepted the evidence that they both have a close relationship with KXE. She expressed warmth to both of them, and indicates that she and her husband brought OGT up as their own child.
3. Both OGT and BSE consented to a change in their authority as enduring guardians to make decisions about the use of the stated environmental restraint. We were satisfied from her comments that OGT in particular would bring a critical mind to the use of the said environmental restraint in the context of the conditions we have attached to this order, including that the focus be on the prevention of harm to KXE and that its use be included in a Behaviour Support Plan which focusses amongst other things on the impact on KXE of the use of this restraint. We were also satisfied from observing the interaction between OGT and BSE in the hearing that they will be able to cooperate with each other in making the best decisions for KXE in this additional important area of her life.
4. We saw no reason to implement the power to make a guardianship order. Doing so would provide OGT and BSE with no greater authority then they have as enduring guardians, and would involve further reviews by this Tribunal in circumstances where this would not be necessary to protect KXE's welfare and interests.
5. The applicant NZH supported the orders proposed by the Tribunal.
6. For these reasons, we made the order varying the 2023 AEG by adding the authority to make decisions about the said restrictive practice. This function is now in addition to those which KXE put in place when making the appointment in August 2023.

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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: 24 May 2024