NZX [2021] NSWCATGD 16

The hearing

1. The hearing was held by telephone and the Tribunal spoke with NAN, Ms Z, Director of Care Services at the aged care facility and Dr Y, GP (part of the hearing).
2. Wherever possible, the Tribunal must include and seek the views of the "subject person". However the paramount consideration for the Tribunal is the person's "interests and welfare". The hearing participants agreed that NZX would not be able to understand the proceedings, and that it was likely to cause her to become stressed and unsettled. This was consistent with the medical evidence and the Tribunal was satisfied that NZX would not be able to understand or express her views, and that it may cause her some distress. The Tribunal was satisfied that it was consistent with her interests and welfare to proceed without her participation.

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order, or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are:

• Is NZX someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?
• Should the Tribunal make a further guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is NZX someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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).
2. When the previous order was made, the Tribunal considered evidence that NZX had cognitive impairment consistent with vascular/Alzheimer's dementia and that this prevented her from making important life decisions.
3. There is no new evidence before the Tribunal for this review which conflicts with this. A letter dated 22 June 2021 from Ms Z confirms that NZX has been diagnosed with Alzheimer's dementia and displays some behavioural symptoms, including sundowning, and refusal of care.
4. At the hearing the participants confirmed that NZX's dementia has progressed and she requires support with all activities of daily living. Whilst she is able to make very simple day-to-day decisions about her preferences (what to eat or wear), she is unable to understand and make more complex decisions.
5. The Tribunal is satisfied that NZX continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order if necessary.

Should the Tribunal make a further guardianship order and if so, 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 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.
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 is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

Accommodation and services

1. The Tribunal considered a Private Guardians statement, and a letter dated 22 June 2021 from NAN, who confirmed this information at the hearing. NAN states that as guardian she made the decision for her mother to move from Sydney, to her current accommodation in regional NSW. She chose this facility because it was close to her, as NZX's sons were not actively involved with her. NAN indicates that she has not made any decisions as guardian regarding services for her mother. NAN indicates that there are no further decisions to be made regarding her accommodation or services.
2. Ms Z confirmed that NZX receives the care that she needs at the aged care facility and is reasonably well-settled.

Consideration

1. As NZX is a permanent resident in appropriate accommodation, where she receives all the support she requires, the Tribunal was satisfied that there was no further need for a guardian to be given authority to make decisions about her accommodation or support services.

Healthcare and medical/dental treatment

1. NAN states that she has made a number of decisions about her mother's health care and medical treatment. She attended hospital several times due to infections and falls when she first moved to the aged care facility in regional NSW, however, she is now settled. NAN said that she communicates each Tuesday with staff at the facility after Dr Y has visited. She has also attended an optometrist appointment with her mother. She anticipates ongoing health care decisions, including podiatry, and occupational therapy/physiotherapy as well as a recommended geriatrician review. NZX can be resistant to personal care such as having her nails cut by staff but will allow her daughter to do this for her. She is generally willing to take medication but may require some reassurance at times.
2. NAN states that NZX has settled in well, but does say that she misses her home. Her sisters, Lynette and Debbie, are in touch with her and NAN has good communication with them about NZX. NZX's sons were given her contact details, but neither has made contact nor have they responded to phone calls from staff or from NZX herself. Although NAN does not have a strong relationship with her brothers, she has done her best to try and keep them informed about NZX. Ms Z said that NZX has her sons' phone numbers and sometimes asks the staff to help her to call them, which they do. However the sons never answer their phones or return her calls. It is a shame for NZX that they do not make contact with her.
3. Ms Z said that NZX is in reasonably good health, although she does have recurrent urinary tract infections. She confirmed that NAN is the contact person for NZX and indicated, when asked, that there is likely to be no problem with NAN being able to make decisions about her mother's health care and medical treatment in the future, even if this authority is not included in a guardianship order.

Consideration

1. Part 5 of the Act provides for a substitute consent regime for medical and dental treatment by a "person responsible". The Tribunal does not appoint someone to the role of "person responsible". Instead a person may be recognised in this role by the treating practitioner because of the person's relationship with the person needing treatment. The "person responsible" is identified in s 33A of the Act as a hierarchy of authority, starting with a legally appointed guardian or enduring guardian. After this comes a person's spouse or carer or other close friend or family member.
2. As NAN is the first point of contact on the record at the aged care facility, the Tribunal was satisfied that she is, and will likely continue to be recognised as her mother's "person responsible". On this basis she can make decisions about her mother's medical and dental treatment in that capacity, regardless of whether this authority is included in a guardianship order. The Tribunal was satisfied there is no need to include these matters in a further guardianship order.

Restrictive practices

1. The Tribunal was also given a number of behavioural assessment forms, a Summary Care Plan and an Agreed Care and Services Plan. These refer to NZX displaying behavioural symptoms including refusal to participate in activities of daily living, being verbally demanding, including screaming and swearing, wandering, excessive suspiciousness, verbal accusations, and expressing delusions.
2. Ms Z's letter states that NZX was prescribed Quetiapine, an antipsychotic medication, whilst in hospital. This medication has been effective in reducing her agitation. However it is considered to be a chemical restraint - a form of restrictive practice and requires regular review and consent.
3. The Summary Care Plan refers to restrictive practices comprising a bed alarm, as well as her bed being set at the lowest height with crash mats on both sides, and chemical restraint of Quetiapine 25mg at night.
4. At the hearing Ms Z confirmed that the crash mat and bed alarms are no longer used. She explained that NZX had been having falls when she got up, because of postural hypotension and the crash mat and alarm were used to alert staff that she was getting out of bed and to provide some protection if she fell. Ms Z said that NZX has new blood pressure medication which is working well and she no longer has this problem.
5. Ms Z said that NZX's ongoing behaviour symptoms are primarily "sundowning" - that is increased agitation and distress in the late afternoon/early evening, saying she wants to go home. It is not a secure facility, and she does not try to leave, but she will ask staff to call her a taxi. Staff are usually able to redirect her and accompany her back to her room, where she is happy.
6. Dr Y explained that NZX is now prescribed Quetiapine 25mg, as needed (PRN), to assist in managing NZX's behavioural symptoms. It is no longer prescribed for daily administration. It is only to be given when other strategies, such as reassurance and redirection have not been sufficient. It is the lowest possible dose, does not appear to have had any side effects and its continued prescription is reviewed each week when he sees NZX.
7. Ms Z confirmed that their records show that NZX has been given PRN Quetiapine 14 times in the last two months. She noted that NZX had become very upset when the Tribunal officer called to speak with her in preparation for the hearing and had needed the medication more often than usual in the last week, possibly because of this. The medication is effective in helping her settle down when agitated if behavioural strategies have been insufficient.

Consideration

1. There have been a series of recent changes in the legislative guidelines for aged care facilities in a number of areas, and in particular in relation to the use of what was formerly referred to as "restraint" but is now referred to as "restrictive practices". From 1 July 2021, amendments to Pt 4A of the Quality of Care Principles 2014 (Cth) ("the Principles") made under the Aged Care Act 1997 (Cth) took effect. An overview of these amendments in respect of the definitions of "restrictive practices" and who may give consent to the use of a restrictive practice, namely a "restrictive practices substitute decision-maker", is provided in TZD [2021] NSWCATGD 14 ("TZD"), [35]-[44] (a decision made on 16 July 2021).
2. The Tribunal in TZD specifically noted (at [38]) that the new definitions introduced into the Principles: "Whilst also being largely consistent with the definitions used under the NDIS Rules…also provide greater specificity about the categorisation of restrictive practices that may be used in relation to a care recipient. In our view this is important from the point of accuracy and consistency when considering the prospect of restrictions being imposed on a person's rights and freedoms."
3. The amendments to Pt 4A of the Principles also provided that from 1 September 2021, behaviour support plans are mandatory for certain care recipients, and sets out details in relation to their preparation, review and revision.
4. It is important to note that this Tribunal has no regulatory role to play in relation to approved providers' compliance with their obligations under these principles. Section 15F of the Principles includes a note that the use of a restrictive practice other than in accordance with the provisions in the principles is a "reportable incident", to be dealt with under the Aged Care Act. This Tribunal's focus, as always, is in relation to the circumstances and needs of the individual who is the subject of an application or order, and in particular, their welfare and interests. This includes ensuring that any decisions which are made regarding their support, care or treatment are made by an appropriately authorised person.

What are restrictive practices and when can they be used?

1. Section 15E of the Principles refers to a number of categories of "restrictive practice" - chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion. "Chemical restraint" is relevant in NZX's situation. This is defined as a "practice or intervention that is or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient's behaviour, but does not include the use of medication prescribed for the treatment of, or to enable treatment of, the care recipient for a diagnosed mental disorder, a physical illness, a physical condition or end of life care".
2. Section 15FA of the Principles sets out the terms and conditions with which an "approved provider" must comply when using restrictive practices generally. These include that such restraint is to be used as a "last resort" to prevent harm to the care recipient or other persons (as assessed by a medical or nurse practitioner) and is to be used for the shortest possible time and in the least restrictive form necessary to achieve this, with regular review and consideration of less restrictive alternatives. The practice and alternative strategies that have been tried must be documented in a behaviour support plan. [End note removed for publication.]
3. Section 15FC of the Principles contains additional requirements in relation to the use of chemical restraint, including that the approved provider must be satisfied that a medical practitioner or nurse practitioner has assessed that the care recipient poses a risk of harm to themself or others; that the use of chemical restraint is necessary; and that they have prescribed medication for this purpose.
4. A behaviour support plan must record a number of things, including: details of the assessment of the care recipient; the behaviours of concern, the decision to prescribe chemical restraint; the reasons for it; and details of any other external support services involved in the assessment. [End note removed for publication.]

Obligations of an approved provider regarding restrictive practices and behaviour support plans

1. Division 4, s 15GA of the Principles sets out the responsibilities of an approved provider in relation to monitoring the use, the continued need, the effectiveness, the alternative environmental strategies of the restrictive practices, as well as the responsibility to report back to the medical practitioner or nurse practitioner in relation to the effects and use of chemical restraint.
2. Division 5, s 15HA of the Principles specifies the responsibilities of an approved care provider to prepare, review and revise a behaviour support plan for care recipients who require behaviour support. The behaviour support plan must be included in the care and services plan for the care recipient.
3. Section 15HB of the Principles specifies the matters which must be included in a behaviour support plan generally. The behaviour support plan must take into account the care recipient's preferences as well as matters which may be meaningful or of interest for them, and must aim to improve the care recipient's quality of life and engagement. It must include relevant background and contextual information regarding the care recipient and the behaviour of concern; assessment relevant to understanding the behaviour; information about the behaviours of concern including details of each occurrence, duration, frequency, adverse consequences for the care recipient or others; best practices strategies (as alternatives to restrictive practices), and the outcomes of any strategies used. It must also include details of the approved provider's consultation regarding alternative strategies with the care recipient or their representative.
4. Sections 15HC, 15HD and 15HE of the Principles contain a comprehensive list of matters which must be set out in a behaviour support plan, in the event that restrictive practices are assessed as necessary (s 15HC), are used (s 15HD), and if ongoing use is indicated (s 15HE). Broadly, these require full details of the restrictive practice including when it is to be used, the best practice alternatives, including any less restrictive form of the restrictive practice, details of advice from external support services, details of monitoring and review of the use of the restrictive practice. They also require evidence of consent to the use of the restrictive practice.
5. Section 15HF of the Principles requires an approved provider to review and make necessary revisions to a behaviour support plan, "on a regular basis" and as "soon as practicable" after any change in circumstances.
6. Section 15HG of the Principles requires that when preparing, reviewing or revising the behaviour support plan, the approved provider must consult with the care recipient, and any person they nominate; if they lack capacity, then a person who is authorised under relevant State or Territory law to make decisions for the person and health practitioners with expertise relevant to the care recipient's behaviours of concern. If the behaviour support plan includes restrictive practices, the approved provider must also consult with the approved health provider who made the assessment, and the restrictive practices substitute decision-maker (if the care recipient lacks capacity).

Consent to the use of restrictive practices

1. Sections 15FA(f) and 15FC(c) of the Principles provide that informed consent to the use of restrictive practice must be given by the care recipient, or if they lack capacity to do so, then by the "restrictive practice substitute decision-maker". An approved provider must be satisfied that informed consent has been given in accordance with these requirements.
2. "Restrictive practice decision maker" is a new term in this amendment of the principles, and is defined in s 4 of the Principles as: 4 Definitions … restrictive practices substitute decision‑maker, for a restrictive practice in relation to a care recipient, means 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. …
3. The Tribunal has previously considered the issues of restraint and substitute consent to the use of restraint in aged care facilities in a number of published decisions, (JFL [2020] NSWCATGD 36 ("JFL"), SZH [2020] NSWCATGD 28 and VZM [2020] NSWCATGD 25). In comprehensive explanations of the legislative regimes current at the time, 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. The term "restrictive practices" has now replaced "restraint".
4. "Restrictive practices substitute decision-maker" was not specifically considered in the decisions referred to above because it has been included in the Principles since those decisions were made. However, the Tribunal is satisfied that the introduction of this term provides no basis to depart from the view that an authorised guardian is required to provide substitute consent to the use of restrictive practices.
5. In NZX's case, this involves consent to the use of chemical restraint. The Tribunal is therefore satisfied that NZX requires a guardian who is authorised to provide consent to the use of restrictive practices - chemical restraint.

Conditions

1. As with all decisions which are made by a guardian (and others under the Act), the subject person's "interests and welfare" are the paramount consideration. The appointed guardian must have regard to this when deciding whether to provide consent to the restrictive practices. When appointing a guardian to authorise the use of restrictive practices, the Tribunal has also traditionally imposed conditions upon the appointed guardian's authority to do so (pursuant to s 16(1)(d) of the Act). In JFL (at [96]-[101]), conditions were imposed upon the guardian that were appropriate to the regulatory framework that then applied to the aged care arena. This decision noted (at [96]) the analysis provided in HZC [2019] NSWCATGD 8 (at [32]-[36]) that: "the Tribunal's jurisprudence developed in the context of applications being made in relation to people who engage in "behaviours of concern" which involve physical or other risks to themselves and others and that responses needed to be developed to reduce or remove those risks (HZC, [32]). The development of behaviour support plans to address behaviours of concern form a critical part of clinical practice around these issues."
2. In considering the nature of the conditions to be imposed upon the guardian for NZX, we have had regard to the new, detailed safeguarding requirements contained in the Principles as set out previously. The conditions we have imposed seek to ensure that the guardian takes reasonable steps to satisfy themselves that appropriate professional input is sought and proper consideration is given on an ongoing basis, to the least restrictive means of addressing NZX's behaviours of concern and that these considerations are documented, as required, in a behaviour support plan. In addition, the conditions seek to reflect the intersection between the Principles and the general principles set out in s 4 of the Act that require that NZX's freedoms are restricted as little as possible whilst protecting her from neglect, abuse and exploitation.
3. Having regard to all of these matters, we impose the following conditions upon NZX's appointed guardian when utilising the authority to give or withhold consent to the use of restrictive practices: "The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence [NZX]'s behaviour: (i) as a last resort to prevent [NZX] harming herself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to [NZX] or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on [NZX]; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014, after consultation with a health practitioner with expertise relevant to [NZX]'s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in [NZX]'s circumstances."

Mandatory matters

1. The Tribunal was not able to obtain NZX's views about a further guardianship order. NAN was in support of a further order being made in the terms proposed. NAN and Ms Z gave evidence about efforts that have been made to encourage contact and involvement from NZX's sons with no success. However there is nothing to suggest that the existence of a further guardianship order will have any particular impact on her family relationships, or on any cultural or linguistic environment with which she identifies. The Tribunal had regard to the services which can be provided to NZX and decisions which can be made on her behalf without the need for a guardian. Of the outstanding matters, only decisions regarding the continued use of restrictive practices require the appointment of a guardian, and this is reflected in the proposed order.
2. The Tribunal decided on the basis of all of this evidence that a further guardianship order should be made for NZX, and the guardian given authority to make decisions about the use of restrictive practices - chemical restraint, subject to the conditions set out in the order.

Who should be appointed as the guardian?

1. The Tribunal has previously decided that NAN meets the requirements of the Act and may be appointed as guardian for NZX.
2. NAN wishes to remain as guardian for her mother. In her letter Ms Z states that NAN and NZX have a very good relationship, and NZX has improved because of her interactions with NAN. She states that NAN always makes decisions in her mother's best interests and is very supportive and caring. She supported NAN continuing as guardian for NZX. NAN demonstrated to the Tribunal that she has a conscientious approach and a strong commitment to ensuring that her mother receives the care that she needs, and enjoys a good quality of life.
3. The Tribunal was satisfied that NAN continues to meet the requirements of the Act and reappointed her as guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.
2. The Tribunal decided to make an order for two years, because there is likely an ongoing need for a guardian. Given the evidence regarding the distress NZX experienced in relation to the Tribunal's contact regarding this review of the guardianship order, it is consistent with her interests and welfare to make a longer order to reduce future contact.

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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: 05 November 2021