MZC [2018] NSWCATGD 34

Evidence

1. In his application for guardianship, OXM stated that a guardian with a restrictive practices function is required to give consent to the use of locks on the fridge, freezer and pantry in MZC's accommodation as he has food-seeking behaviour and dysphasia. Accessible food places MZC at 'immediate choking risk' and is also 'a trigger for behaviours which cause damage to property and possible harm to [MZC], his staff and immediate neighbours'.
2. In support of the application, OXM submitted a Lifestyle and Behaviour Support Plan (the BSP), dated October 2018, prepared by Mr Z, Clinical Consultant at a human services consultancy. The Plan contained the following relevant information.
3. MZC has been diagnosed with an intellectual disability in the severe range. MZC's mood can also fluctuate dramatically. These mood swings appear to be driven internally.
4. MZC has a history of engaging in behaviour that puts himself, those supporting him and members of the community at risk, including verbal and physical aggression, property destruction and 'unsafe behaviours' in the car. These behaviours of concern can be triggered by a number of situations or events, including not having a clear, predictable schedule; unexpected changes to plans; being told to wait and not having something to do while waiting; boredom or lack of engagement in activities; his 'internal state' relating to his bipolar disorder, being denied an item; food and waiting for meals; and staff talking to each other or answering phone calls.
5. With regard to restrictive practices, it was stated that, recently, a barrier was installed in the vehicle used by MZC, which has significantly reduced the risk to him, staff and others travelling in the car. It was stated that the use of the barrier in the vehicle represents 'a safety-related strategy associated with non-purposeful risk behaviour'. Whilst the safety device does impose a level of limitations on MZC's freedoms, safety concerns necessitates the use of a restrictive practice for the purpose of managing non-purposeful risk behaviour under section 4.8.1 of the NSW Restrictive Practice Authorisation Policy 2018 relating to Therapeutic or Safety Devices.
6. The Plan further identified the use of Chemical Restraint and Environmental Restraint as restrictive practices in place in relation to MZC. It was stated that MZC is currently prescribed PRN medication to assist him to calm when he becomes distressed and agitated, including prior to some medical appointments to enable him to tolerate attending the appointment, participating in the consultation or undergoing treatment. MZC's access to food has also been reduced overnight to prevent risk of choking and risk of fire if he decided to heat or grill food. The Plan, however, characterised the measures used to reduce such access as 'Non-Purposeful Risk Behaviour' under section 4.8.2 of NSW Restrictive Practice Authorisation Policy 2018, which addresses 'behaviour that involves a physical risk to the client' and 'behaviour associated with actions that directly place the client at personal risk'.
7. OXM's evidence at the hearing indicated that reducing MZC's access to food is not intended to be confined to 'overnight'. He stated that, presently, MZC's food is being stored in a fridge in a nearby unit of a disability service provider, which is not a practical option on an ongoing basis. MZC's food seeking behaviour does not stop, despite repeated redirection and other strategies regularly used.
8. OXM also told the Tribunal that the application did not make any references to the use of PRN medication as he was not sure whether the practice would require the consent of a guardian. He stated that PRN medication has been used on six occasions over the past 11 months to manage MZC's challenging behaviour around food and his anxiety in relation to medical and health care visits.

The Hearing

1. The hearing was held on 30 November 2018. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]
2. Prior to the hearing, OXM informed the Tribunal that MZC is unable to attend in person as he is 'resistant to new places.' OXM, nevertheless, advised that he will arrange for MZC to be available by phone should the Tribunal wish to speak to him.
3. Whilst the Tribunal must afford procedural fairness to a person subject of an application before the Tribunal, it also needs to consider the person's capacity to participate in the hearing and any distress that it may cause. The Tribunal was mindful of the information provided in the BSP in relation to MZC's communication. It was stated in the plan that MZC he has limited verbal language and significant difficulties with expressive and receptive communication. According to Mr Z: [MZC] has marked limitations in executive functioning and emotional control. This means he has difficulties with paying attention, organising and planning, initiating tasks and staying focussed on them, solving problems, regulating emotions, and self-monitoring (keeping track of what he's doing). This is due to poor working memory, and difficulties with cognitive flexibility and cognitive control (including self-control).
4. MZC is able to respond to two-step instructions or a short sequence of events and providing him with more information than this 'leads to confusion and worry'. He does not like loud noises and dislikes feeling pressured to participate when he is not ready or interested.
5. The Tribunal was also mindful of Mr Z's assessment that MZC has a history of engaging in certain behaviour, such as verbal and physical aggression and property destruction that puts himself, those supporting him and members of the community at risk. As noted earlier, MZC's behaviour can be triggered by a number of situations or events, including unexpected changes to plans; being told to wait and not having something to do while waiting; boredom or lack of engagement in activities; and staff talking to each other or answering phone calls. No-one participating in the hearing felt that MZC had capacity to participate in the proceedings or that it would be in his best interests for the Tribunal to attempt to speak with MZC in relation to the application by telephone. The Tribunal was satisfied that speaking to MZC over the telephone in order to seek his views may cause him distress and place his support worker at risk of facing aggression. The Tribunal decided to proceed with the hearing without MZC's participation.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is MZC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is MZC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

1. 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/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': s 3(1) of the Act. 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: s 3(2) of the Act).
2. The Tribunal accepted the medical evidence before it indicating MZC has a severe intellectual disability, bipolar disorder and communication deficits. On the basis of this evidence, the Tribunal was satisfied that MZC's disability results in him being restricted in certain major life activities to such an extent that he requires supervision and assistance and is thereby incapable of managing his own person. The Tribunal, therefore, was satisfied that a guardianship order could be made for MZC.

Should the Tribunal make a guardianship order and what order should be made?

1. 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 guardianship order: 1. The views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. The importance of preserving the person's existing family relationships, and 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 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).
3. The application and the supporting documentation requested a guardianship order on the basis that decisions are required to be made on MZC's behalf in relation to the practices proposed in the BSP. The evidence presented at the hearing also suggested that decisions may be required to be made with respect to MZC's future accommodation and services.

Restrictive Practices

1. Restrictive practices are used to manage challenging behaviour or avoid injury, with the primary purpose of protecting the person or others from harm. The Act does not define restrictive practices. Generally, however, a restrictive practice has been viewed as any practice or intervention that restricts a person's rights, freedom of movement or access to objects.
2. Under the common law, the use of a restrictive practice could be unlawful if the practice amounts to an assault, detinue or wrongful imprisonment and the person implementing it does so without the necessary consent or a lawful defence, such as self-defence and necessity. In these circumstances, the Tribunal can make a guardianship order, appointing a guardian to give consent to such practices, particularly when there are doubts about the lawfulness of a practice used to manage challenging behaviour.
3. In addition to the question of lawfulness, the Tribunal considers all other relevant circumstances when deciding whether to appoint a guardian to decide about restrictive practices, including the views of the person and others, as well as the context, the nature, the degree and the purpose of the restrictions to ensure that the rights of the subject person are not breached. These considerations ensure an adequate balance between the rights to autonomy of a person with a disability and the need for some members of the community to manage challenging behaviours in the best interests of the person.
4. Prior to 1 July 2018, policies set by the Department of Family and Community Services (FACS) controlled the use of restrictive practices in government-run and government-funded facilities. This made FACS the largest organisation in NSW bringing guardianship applications concerning the use of restrictive practices to the Tribunal. In considering these applications, the Tribunal has always been mindful of these policies, their stated objectives and their actual impact on the subject of the application.
5. Under the National Disability Insurance Scheme (NDIS), however, most disability services previously provided by the NSW government were transferred to the non-government sector to be administered under a Commonwealth system. This has fundamentally changed how supports for people with disability are funded and delivered across Australia.
6. The NDIS Quality and Safeguarding Framework underpins the Scheme. Under the Framework, states and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners. [Footnote removed for publication.] Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practices as 'any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability'.
7. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguards Commission (NDIS Commission) and will be responsible for ensuring that proper consent is obtained for all use of restrictive practices. Under existing guidelines, registered NDIS providers and behavioural support practitioners in NSW must 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.[Footnote removed for publication.]
8. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (Rule 6): (a) 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; (b) 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; (c) 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; (d) 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; (e) environmental restraint, which restrict a person's free access to all parts of their environment, including items or activities.
9. The Notes to Rule 7 state that 'a registered NDIS provider may be liable to a civil penalty if the provider breaches a condition to which the provider's registration is subject (see s 73J of the [National Disability Insurance Scheme Act])'.
10. Part 2 of the Rules sets out the conditions of registration that apply to all registered NDIS providers who use restrictive practices in the course of delivering NDIS supports. These conditions include requiring the use of restrictive practices to: not occur where the relevant State and Territory prohibits such use; to be undertaken in accordance with State and Territory authorisation processes and a behaviour support plan; and to be recorded by the provider and reported to the Commissioner.
11. Rule 9 relates to the use of a regulated restrictive practice in a State or Territory 'with an authorisation process (however described)' by a registered NDIS provider in that State. The Notes to Rule 9 state: An authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer.
12. The Tribunal accepts that the disability service provider is a registered NDIS provider in NSW. As noted earlier, the Tribunal does not have the explicit legislative mandate to regulate restrictive practices found in some other states. The Tribunal, however, is of the view that the existence of the Act, through the process of appointment of guardians, is an 'authorisation process' as described in the Rules and the regulatory scheme applies to service providers in NSW.
13. The evidence before the Tribunal indicates that there are currently three restrictive practices in place with respect to MZC: the use of PRN medication, the use of a barrier or a shield inside the transport vehicle and reducing MZC's access to food. MZC's BSP assessed the use of PRN medication as a regulated restrictive practice (Chemical Restraint). However, the BSP referred to the NSW Restrictive Practices Authorisation Policy 2018 to characterise the other two practices as Non-Purposeful Risk Behaviour that fall within circumstances that require specific exceptions or exclusions in relation to RPA processes relating to restrictive practice authorisation.
14. Section 4.8.1 of the NSW Restrictive Practices Authorisation Policy 2018 states that registered NDIS providers must assess whether the application of any specific safety or therapeutic device or practice constitutes a restrictive practice for the purpose of managing risk associated with a behaviour of concern. Commonly, health or allied health discipline practitioners, including behaviour support practitioners, would assess non-purposeful risk behaviour. The section refers to two specific practice categories within this classification: a. Health / Medical support practices used/recommended by health or allied health professionals (e.g., occupational therapists) for therapeutic purposes, are not considered as restrictive practices under this policy. Support needs associated with choking, falls, seizures, nutrition, swallowing requirements fall into this classification. These needs may be related to specific conditions (e.g. diabetes, epilepsy) or specific management (e.g. dietary, positioning and lifting routines). b. Use of seatbelt buckle covers - strategies used for safe travel purposes are not considered to be restrictive practices, where the person's action are deemed to fall into the category of non-purposeful risk (refer Section 4.8.2).
15. Section 4.8.2 specifies three (3) categories of 'Non-purposeful' Risk Behaviour: 1. "Physical Risk" behaviour - is behaviour that involves a physical risk to the client e.g, mobility, transitioning, accidental movement, going missing/wandering, etc; 2. Resistance to activities of daily living (ADL) support - is behaviour that demonstrates discomfort associated with daily activities e.g. shaving, tooth brushing, therapy routines, etc; 3. Unsafe actions - is behaviour associated with actions that directly place the client at personal risk e.g. exposure to sharps or poisons, road and electrical unawareness, etc.
16. The Tribunal appreciates that the use of the barrier or shield between MZC and a driver when he uses a vehicle may fall within strategies used for safe travel purposes to prevent unsafe actions, as indeed assessed by Mr Z. Whilst the Tribunal has considered the policy, it is not bound by it. Being guided by the Rules as well as the fact that the boundaries defining certain practices as restrictive are not exact, the Tribunal is of the view that the use of the shield in the vehicle is an Environmental Restraint and a regulated restrictive practice as defined by the Rules. Therefore, a preferable approach would be to view the practice as requiring authorisation.
17. Similarly, placing locks on the fridge, freezer and pantry in MZC's accommodation to reduce his access to food is an Environmental Restraint. Whilst the BSP assessed the practice as Non-purposeful Risk Behaviour, it appears that the assessment was based on the practice of reducing MZC's access to food 'overnight' only. In addition, the BSP did not specify or provide any details as to the mechanisms by which MZC's access is reduced. The Tribunal considers placing locks on the fridge, freezer and pantry to be an Environmental Restraint and a regulated restrictive practice requiring authorisation.
18. With regard to the use of psychotropic PRN medication as required, the practice clearly involves the use of Chemical Restraint as defined by the Rules. When psychotropic medication is sometimes used to address challenging behaviour, the Tribunal usually considers whether consent is required under Pt 5 of the Act and the medication is only permissible if it is needed in the person's interests. In view of the Rules and the definition of Chemical Restraint, the Tribunal does not consider it incompatible with existing jurisprudence or processes for consent to psychotropic PRN medication to be given by a guardian appointed with the function of restrictive practices. The Tribunal, therefore, considers the use psychotropic PRN medication for MZC as a Chemical Restraint and a regulated restrictive practice requiring authorisation, which can be given through the Tribunal's processes.
19. Having carefully considered the evidence before it, in the circumstances of this case, the Tribunal was persuaded that a guardianship order should be made, giving the appointed guardian the function of restrictive practices to make decisions about the following restrictive practices:

• use of chemical restraint on a PRN basis;
• use of a shield/barrier in any vehicle involved in transporting MZC; and
• restricting MZC's access to the contents of his fridge, freezer and/or pantry.

Services

1. The evidence before the Tribunal, including OXM's evidence at the hearing indicated that MZC's current accommodation arrangements have not suited his needs and that the disability service provider will be looking at alternative accommodation arrangements. Due to MZC's care needs, any changes to his accommodation may impact on the level of funding he receives or may be entitled to. The Tribunal heard that the issue will be considered in the course of the review of MZC's NDIS funding.
2. Ms DAC and Ms MYL told the Tribunal that they have made all the decisions relating to MZC's accommodation and services in the past. In relation to services, however, their evidence indicated that they have authorised the disability service provider to conduct all NDIS-related negotiations for MZC on their behalf. As all services are currently delivered to MZC through the disability service provider, the Tribunal was mindful that the disability service provider's active and direct involvement in negotiations with NDIS may give rise to a potential or a real conflict of interest. The Tribunal, therefore, formed the view that the informal arrangements in place with respect to decisions regarding services were not in MZC's best interests. The Tribunal was satisfied that there was a need for a guardian to have a services function to make decisions about services to be provided to MZC, including any advocacy services required to negotiate his level of funding. A services function would also enable the appointed guardian to consent to any subsequent reviews of, or modifications to, MZC's BSP. The Tribunal, therefore, decided that the appointed guardian should also be given the function of services.

Who should be the guardian?

1. 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.
2. 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]).
3. Section 17 of the Act expressly prohibits the Tribunal from appointing a person as guardian unless it is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest in respect of the person under guardianship; and that he or she is both willing and able to exercise the functions of the order.
4. Section 15(3) of the Act provides that the Public Guardian should not be appointed 'in circumstances in which such an order can be made appointing some other person as the guardian of the person'.
5. The love and concern felt by MZC's sisters towards him was evident to the Tribunal. The Tribunal accepts that MZC is very close to his siblings, who have, informally, made decisions on his behalf with respect to his accommodation, services, health care and medical and dental treatment in the past. However, whilst both Ms DAC and Ms MYL stated that they would be prepared to continue to make these decisions, due to health and personal reasons, they did not wish to make decisions with respect to the use of restrictive practices for their brother.
6. As MZC's siblings were not willing to exercise the restrictive practices function of this order, in the absence of any other private guardians, the Tribunal considered it appropriate to appoint the Public Guardian with the function of restrictive practices. For the reasons provided in [44] of this decision, the Tribunal decided to appoint the Public Guardian with the function of services. The Tribunal formed the view that the Public Guardian would be in a position to conduct all NDIS-related negotiations regarding appropriate services and service providers without jeopardising the existing relationship MZC's sisters have with the disability service provider.
7. Having due regard to the principles set out in s 4 of the Act, the Tribunal decided that the informal decision-making arrangement in place with respect to MZC's accommodation and health care should not be disturbed. MZC's siblings are also available as persons responsible should consent be required with regard to any future medical or dental treatment for MZC.

How long should the order last?

1. An initial guardianship order is usually made for a maximum of one year from the date on which it was made. The Tribunal decided to make an order for 12 months to ensure that the Public Guardian would be able to undertake important decisions on MZC's behalf with regard to the functions specified in the Tribunal's order.

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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: 04 February 2019