KZF is a 45-year-old woman who lives in supported accommodation at north-east Sydney managed by a disability service provider. KZF has been diagnosed with intellectual disability associated with rubella. She is vision and hearing impaired and has diagnoses of bipolar disorder, autism and schizoaffective disorder. KZF is non-verbal.
On 16 September 2020 the Tribunal received a guardianship application in respect of KZF from her mother, LBG. As a result of the requirements of the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission, a guardian now needs to be appointed to provide consent to restrictive practices if they are to be implemented by NDIS providers such as the disability service provider.
[2]
The hearing
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
As the hearing was held during the COVID-19 Pandemic it was conducted by telephone.
KZF was unable to participate in the hearing or to provide a view as a result of the severity of her disabilities. We were satisfied that it was in her best interest to proceed with the hearing in her absence.
[3]
What did the Tribunal have to decide?
The questions to be considered by the Tribunal are:
Is KZF someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
Should the Tribunal make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?
[4]
Is KZF someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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": the 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: the Act, s 3(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 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 the community with others."
We had the benefit of a review report from Dr Z from the NSW Developmental Disability Health Unit from 24 January 2018 and a Behaviour Support Plan (BSP) from Mr Y, behaviour support practitioner, dated 2 April 2020. Mr Y also participated in the hearing.
It was evident from reading this material that KZF requires a high degree of support and supervision. She has mild intellectual disability secondary to congenital rubella, severe vision impairment, profound bilateral deafness, autism and bipolar disorder. KZF also has obesity with complications of fatty liver disease and hypertension. She is non-verbal.
While KZF is able to choose her own clothes, save her own money and make small purchases, she is unable to make more complicated lifestyle decisions. We were told that KZF's level of intellectual disability, hearing and vision impairment mean that she requires staff support and supervision for most activities of daily living. She has no road safety skills or awareness of dangers in the community.
The Tribunal is satisfied that KZF has a disability which prevents her making some important life decisions. She is a person for whom the Tribunal could make a guardianship order.
[5]
Should the Tribunal make a guardianship order and if so, what order should be made?
The Tribunal must consider all of the following matters set out in s 14(2) of the 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.
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 Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
KZF was unable to participate in the hearing or provide a view as a result of her disabilities.
LBG has brought the application to the Tribunal due to the changes in the way restrictive practices are dealt with in NSW. In all other areas, KZF's family have been able to make important life decisions for her. LBG has been able to make decisions about her daughter's accommodation and the services that she receives and to represent her interests with the NDIS. LBG is recognised as KZF's person responsible under the Act and provides consent to major or minor medical or dental treatment on her behalf.
We accepted that there are no accommodation decisions to be made. KZF has lived in the same home for over 10 years. It is a semi-detached, self-contained, single-bed unit purpose built for her at the back of an existing group home. We were told that KZF used to attend a day program run by service provider YZ, but now carries out daily activities and community access with support staff from service provider AB and service provider XY. She enjoys her job on a paper run.
KZF is prescribed routine psychotropic medications for the treatment of bipolar disorder by her treating psychiatrist. We were told that KZF is also prescribed PRN Xanax to treat anxiety secondary to autism.
The BSP before us included the prescription of PRN Xanax as a chemical restraint as it is primarily prescribed to manage her behaviours. We were told that PRN is not frequently used, however it is still needed as when KZF becomes physically aggressive or agitated there is a serious risk of harm to herself and others.
The BSP referred to the use of a surveillance camera situated in KZF's unit in the living/dining area as an environmental restraint. This camera does not provide vision of KZF's bathroom or bedroom. The observation screen is in the staff office/safe room of the main house. There have been three uses for the camera since it was first installed 10 years ago. The camera is switched on only in the following scenarios:
For staff training purposes (i.e. an inexperienced staff member watches the screen as an experienced staff member supports KZF);
At mealtimes when KZF has asked people to leave her unit while she eats;
After staff have retreated to the office/safe room because she has escalated to high intensity physical aggression.
In HZC [2019] NSWCATGD 8 the Tribunal described the change in the way restricted practices are now dealt with in NSW. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguarding Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices.
Registered NDIS providers and behaviour support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) ("the Rules"), which commenced on 1 July 2018. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6):
1. Seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;
2. Chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition;
3. Mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;
4. Physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person;
5. Environmental restraint, which restricts a person's free access to all parts of their environment, including items or activities.
The BSP established that incidents of physical aggression are reducing. Physical aggression ranges from banging objects to hitting other people, including small children and older adults in the community. For this reason, as well as due to her lack of road safety, KZF is supported 1:1 in the community. The BSP indicated that the PRN medication is offered when KZF is agitated and not responding to behavioural measures. KZF is offered PRN Xanax and staff will not force her to take it if she refuses. We were told that PRN medication has had to be administered several times over the past year. We were told that usually this is required with non-familiar staff and is used to help KZF to settle and be less agitated. We were satisfied that the administration of PRN medication is primarily used for the purpose of influencing KZF's behaviour in the absence of a report indicating otherwise from the prescribing psychiatrist.
[6]
Who should be appointed as the guardian?
There is a proposal that LBG be appointed as her daughter's guardian. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:
1. have a personality generally compatible with the personality of the person under guardianship;
2. have no undue conflict of interest (particularly financial) with those of the person; and
3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
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: the Act, s 15(3).
The Supreme Court has held that:
"the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
We were satisfied that LBG has demonstrated that she is willing, reliable and responsible to make decisions for her daughter. We were satisfied that she has a personality compatible with KZF and is able to make decisions objectively and in her best interests. We were satisfied that the appointment of LBG would be consistent with the policy considerations and principles set forth in the Act. The appointment of LBG was strongly supported by all the participants in the hearing.
On the basis of this evidence, the Tribunal was satisfied that LBG meets the requirements to be appointed as the private guardian for KZF.
[7]
How long should the order last?
Initial guardianship orders may be made for a period of up to 12 months.
We were satisfied that it was in KZF's best interest to make the order for a period of 12 months.
[8]
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
[9]
Amendments
15 June 2021 - [27] Typographical amendment
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: 15 June 2021
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075
Texts Cited: Nil
Category: Principal judgment
Parties: 001: Guardianship Application
We were told that KZF is protective of her privacy in her unit and does not like having too many people in her space. For this reason, the camera is a helpful tool for the disability service provider to train new staff. Data collection indicates that this is the primary purpose for the camera being switched on. Staff may feel the need to monitor KZF when she is eating when she has asked staff to leave. Recently KZF has asked staff to leave her unit when she is eating - possibly because they suggest she use healthier meal options. The other time that the camera is switched on is to ensure that KZF is safe when staff are prevented from direct observation due to her behaviours of concern, namely aggression.
We were not satisfied that the use of the camera constitutes environmental restraint, or fell into any other restrictive practice defined by the Rules. KZF's freedom of movement or behaviour is not impacted in any sense by the use of the camera. KZF is advised when the camera is turned on and does not object. The camera does not appear to impact her at all. We considered that it was still appropriate for a guardian to provide or withhold consent to the use of the camera due to the intrusion upon her privacy. We decided that we should confer an "other" function that specifically relates to the use of the surveillance camera. We also decided that a guardian could only consent to this function in accordance with the "other condition" attached to the order.
Ms X, house manager, Mr W, key worker, and Mr Y supported a guardianship order being made with the restrictive practice function and the additional function in respect to the circumstances that the surveillance camera may be used. We considered that it was in KZF's interest to ensure that a guardian is involved in making decisions about the use of the surveillance camera and the restrictive practices that are being implemented.
We were satisfied that the preservation of KZF's family relationships and her cultural and linguistic environment would not be impaired by a guardianship order.
We decided to make a guardianship order with the restrictive practice function in relation to chemical restraint and another function in respect of the use of the surveillance camera. The guardian may only consent to the restrictive practices referred to in this order in accordance with the restrictive practice condition attached to the order. Similarly, the guardian can only consent to the use of the camera in accordance with the other condition attached to the order.