NBT [2021] NSWCATGD 2

The hearing

1. The hearing was held by telephone and the Tribunal spoke with NBT, QZT, FBT and Ms Z, social worker from an aged care service provider. The Tribunal had arranged for a Spanish speaking interpreter, although NBT was confident that he did not need this assistance. Nonetheless, the interpreter remained available throughout the hearing to assist as needed.

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

• Is NBT 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?
• 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?

Is NBT 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 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).
2. The Tribunal considered a social work report from Ms Z dated 17 December 2020 which refers to NBT having a diagnosis of Alzheimer's disease, leading to poor short-term memory, difficulty comprehending conversation, planning activities, and understanding the implication of his decisions. He displays some verbally and physically aggressive behaviour, and does not have insight into the impact this has on his family. He also has poor sleep-wake cycle which means that he is awake through the night. She states that he considers he is able to make his own decisions about where he should live, the services he receives and all other day to day decisions. This presents a challenge because he is unable to control his behaviours and understand his situation. She states that NBT is "unable to make informed decisions about the safest and most appropriate place for him to live long term". Ms Z confirmed this evidence at the hearing.
3. The Tribunal also considered a letter dated 2 December 2020 from Dr Y, Geriatrician from the aged care service provider which refers to NBT having been diagnosed with Alzheimer's disease in 2016. He now has moderate Alzheimer's disease, and requires supervision or assistance with all activities of daily living. He displays physical and verbal aggression towards his family because of poor cognition and this makes it difficult to manage his care. He has been trialled on Risperidone and an anti-depressant with only minor improvements from the Risperidone. Dr Y states that NBT displays no insight into his current difficulties or those of his family, and has "poor capacity for accommodation choice". When the option of residential care was discussed he was not able to "consider the benefit of bringing himself to care" and was not able to explain his refusal. Dr Y states that NBT's inability to consider alternative accommodation demonstrates his difficulties with judgement.
4. At the hearing NBT denied that he has any difficulties with his health, his memory or understanding his situation. He is happy with his life and enjoys talking the dog for walks and staying busy. NBT repeated this information on a number of occasions during the hearing and it was apparent that he did not recall that he was repeating himself. He also tended to provide this information in response to questions asked of him, even if it was not an answer to the question asked. His presentation was generally consistent with the professional reports, although he did not display any aggressive behaviour during the hearing.
5. QZT and FBT both agreed that NBT has dementia and is not able to make important decisions for himself any longer. His memory is very poor and he does not remember that he cannot remember things.
6. The Tribunal is satisfied from the available evidence that NBT's cognitive impairment from dementia means that he is not able to understand his situation, and therefore make decisions about his needs. He is therefore a person who, because of a disability is totally incapable of managing his person, and this prevents him from making important life decisions. He is a person for whom the Tribunal could make a guardianship order if necessary.

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; 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 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. In the normal course of events, there may be no need for a guardianship order to be made for a person who has appointed an enduring guardian who is able to make decisions for them if they are not able to do so. The Tribunal noted that NBT made an Enduring Guardianship instrument appointing QZT as enduring guardian and FBT as substitute enduring guardian dated 30 August 2016 to make decisions for him about his accommodation, health care, services and medical and dental consent functions when needed. However there are circumstances where a guardianship order may still be necessary and in the persons interests
4. Ms Z refers to FBT experiencing considerable carer stress and being unable to continue to care for NBT at home. It is recommended that he move to residential aged care, but he is opposed to this and the enduring guardian appointment does not provide sufficient authority for FBT to make this decision. An attempt has already been made for him to move to an aged care facility in East Sydney and although he went there for a short time with QZT, he refused to stay. QZT said that she went to the facility with her husband and he was fine walking around looking at it with her, but once he heard someone refer to "his room", he changed and became very upset and refused to stay. The woman at the facility said that they could not make him stay there given he was insisting on leaving, and QZT had to talk him home. As enduring guardian, QZT is able to make decisions about where her husband should live, but does not have the power to authorise other people to keep him at a place if he does not want to remain there. However the Tribunal is able to make a guardianship order and give the guardian the ability to authorise other people to take NBT to the place the guardian has decided he should be, keep him there and return him if he leaves. Given the circumstances, it appears that this will be necessary in order for NBT to move to residential aged care. Unfortunately the bed that was available at the aged care facility in East Sydney is no longer available and they need to find another suitable placement. Ms Z confirmed that it may be possible for NBT to be admitted to hospital for a period to see if there can be some adjustment to his medications which will help in managing the BPSD. He may then be better placed to be discharged to residential care. However it may be that he just moves directly to residential aged care. It depends on what becomes available.
5. In any event, Ms Z confirmed that NBT will need to be in a secure dementia unit and that he is most likely to continue to be on medication to try and manage his behaviour. At the present time he is prescribed Risperidone and the dose was recently increased, although his family don't feel that he has shown any benefit from this. The Tribunal noted that placement in a secure dementia unit which NBT is unable to leave, and the use of medication to try and manage his behaviour appears to fall within the definitions of "restraint" or "restrictive practices", as explained below.
6. There have been recent changes in the legislative guidelines for aged care facilities in a number of areas, and in particular in relation to the use of "restraint". Section 4 of the Quality of Care Principles 2014 (Cth) ("the Principles"), made under the Aged Care Act 1997 (Cth) and amended in July 2019, defines "restraint" as "any practice, device or action that interferes with a consumer's ability to make a decision or restricts a consumer's free movement". "Physical restraint" is defined as any restraint other than a chemical restraint. "Chemical restraint" is defined as medication prescribed for the purpose of influencing a person's behaviour, rather than for the treatment of, or to enable treatment of, a diagnosed mental disorder, physical illness or physical condition.
7. Sections 15F and 15G of the Principles [1] set out the terms and conditions with which a residential care provider must comply when using physical restraint, and chemical restraint. Both are to be used as a "last resort" and both require consent from the "consumer" or their "representative" as well as regular review and consideration of less restrictive alternatives.
8. The Tribunal has recently considered the issues of restraint and substitute consent to the use of restraint in aged care facilities in three published decisions, JFL [2020] NSW CAT GD 36, SZH [2020] NSWCATGD 28 and VZM (2020) NSWCAT GD 25. In very comprehensive explanations of the various legislative regimes, the Tribunal in those cases was satisfied that in the event that a person is not able to consent on their own behalf to the use of physical or chemical restraint, then consent can only be given by a properly authorised guardian. In the cases of JFL and SZH the Tribunal also considered in detail whether, amongst other things, placement of a person in a secure dementia unit ("memory support unit") amounts to a physical restraint, if they are unable to leave because of a locked doors (in those cases, a coded keypad lock). The Tribunal was satisfied in those cases, that this practice does amount to a physical restraint, even if the person does not make any effort, or express the desire or intention to leave the unit.
9. In NBT's case, the evidence is that he is currently prescribed medication (Risperidone) in order to try and manage his behaviour, which, once he moves to aged care, will most likely fall within the definition of "chemical restraint". The evidence is that he is unwilling to move to aged care, and that given his memory impairment, he will, when he does move to aged care, require placement in a secure dementia unit. Based on the decisions referred to above, this will amount to a physical restraint. The Tribunal is satisfied that as NBT's cognitive impairment is such that he would not be able to consent on his own behalf, he does need a guardian who is authorised to decide on his behalf whether or not to consent to the use of chemical and physical restraint.
10. As noted above, NBT does not think he needed a guardian, QZT considers that he does, for the reasons already discussed. There was no indication that making a guardianship order in the terms proposed would impact in any way on NBT's cultural or linguistic background. Although it will likely have some impact on his family relationships, it is hoped that this will be a positive impact, given that the decisions the guardian will be able to make will ensure that NBT can be cared for appropriately and that his wife and daughter will experience some relief from the carer stress they have been under. It is hoped that this will lead to an improvement in their relationship with NBT.
11. On the basis of all of the evidence, the Tribunal was satisfied that it is necessary to appoint a guardian who is able to make decisions for NBT about his accommodation (authorise others), and the use of restrictive practices (physical and chemical restraint). The enduring guardianship appointment is suspended whilst there is a guardianship order in place and because of this, the Tribunal was satisfied that it was in NBT's best interests to replicate the additional powers he had given to the enduring guardian in this guardianship order. Accordingly the Tribunal included authority for the guardian to make decisions about NBT's services, health care and to consent to his medical and dental treatment.

Who should be the guardian?

1. There is a proposal that QZT be appointed guardian for NBT. 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. They 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.
3. 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).
4. QZT said that she was the best person to make decisions for her husband. She did not have any concerns that their relationship may be strained if she made decisions he did not agree with and she is committed to make decisions that are the best decisions for him. NBT agreed that if he ever needed anyone to make decisions on his behalf he would want his wife to do it, and FBT supported her mother being appointed as guardian, noting that's he is a very strong person. Ms Z said that her service supports QZT being appointed as guardian, noting that she had made informed decisions for NBT to date.
5. The Tribunal noted that NBT had appointed his wife as his enduring guardian, indicating that at the time he was able to make decisions for his own future, he trusted her to make decisions for him about important matter.
6. On the basis of this evidence, the Tribunal was satisfied that QZT meets the requirements to be appointed as the private guardian for NBT and appointed her in this role.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made.
2. The Tribunal decided to make an order for 12 months because this should provide sufficient time for decisions to be made about NBT's accommodation and for him to have had the opportunity to settle into a new environment. It is appropriate that the order be reviewed at the end of this period to consider if it continues to be necessary or whether the enduring guardianship appointment will be sufficient and can again become effective.

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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: 08 March 2021