Guardianship and Administration Act 1995 ss: 3, 5, 8, 11, 20.

The decision has been anonymised for the purpose of publication

1. QTD is a 32-year-old man who lives in supported independent living on the northern coast of Tasmania.
2. On 6 May 2025 the Tasmanian Civil and Administrative Tribunal (the Tribunal) received an application for guardianship for QTD, made by his father TD.
3. The application was listed for hearing before us on 26 May 2025. The hearing was conducted via audio visual link and telephone.

1. The hearing was attended by QTD, TD, UD (stepmother), DK (mother) and UC (service manager/NDIS support co-ordinator) and Ms Kylie Hillier from the Office of the Public Guardian (OPG).
2. For reasons outlined below the Tribunal dismissed the application for a guardianship order.
3. On 17 June 2025 the Tribunal received a request from TD for written reasons of our decision. These are the reasons.

1. Section 20(1)(b) and (c) of the Guardianship and Administration Act 1995 (the Act) provides:

20. Guardianship order > > (1) The Tribunal, after a hearing, may make an order appointing a guardian for a person in respect of one or more personal matters if - > > ... > > (b) the Tribunal is satisfied that the person - > > (i) has impaired decision-making ability in respect of decisions relating to those personal matters; and > > (ii) is in need of a guardian; and > > (c) the Tribunal is satisfied that the order will promote the person's personal and social well-being.

8. "Decision-making ability" is defined in s 11 of the Act and s 11(2) sets out when an adult has impaired decision-making ability.

Decision-making ability

...

(2) For the purposes of this Act, an adult has impaired decision-making ability in respect of a decision if the adult is unable, even with the provision of access to practicable and appropriate support, to -

(a) understand information relevant to the decision; or

(b) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; or

(c) use or weigh information relevant to the decision; or

(d) communicate the decision (whether by speech, gesture or other means).

1. "Personal matter" is defined in s 3 of the Act as:

personal matter, in relation to a person, means a matter relating to the personal affairs or lifestyle of the person, including, but not limited to, the following matters: > > (a) where and with whom the person lives, whether permanently or temporarily; > > (b) who may contact (whether by post, telephone, or electronic or other means) or visit the person, including - > > (i) restrictions on contact with the person or visits to the person that are necessary to promote the personal and social well-being of the person; and > > (ii) the prohibition on contact with, or visits to, the person by any person if that contact or those visits would have an adverse effect on the person; > > (c) the provision of care services to the person; > > (d) what education, training or work the person undertakes; > > (e) except as provided under Parts 5A and 6, consenting to or refusing or withdrawing consent to the provision of health care or medical or dental treatment to the person; > > (f) except as provided under Part 6A , consenting to or refusing or withdrawing consent to the conduct of health and medical research in relation to the person; > > (g) any legal matter that relates to the personal affairs of the person;

1. In determining whether a person is a need of a guardian the Tribunal must consider in accordance with s 20(2) of the Act:

(a) the wishes and preferences of the person, as far as they can be ascertained; > > (b) whether the needs of the person could be met by other means less restrictive of that person's freedom of decision and action; > > (c) the wishes and preferences of any close family members, carers and other significant persons in the life of the person who are present at the hearing and are entitled to be heard at that hearing.

1. Section 5 of the Act sets how a person's "personal and social well-being" is promoted:

5. Meaning of promoting a person's personal and social well-being > > For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social well-being of a person is promoted by - > > (a) respecting the inherent dignity of the person and the person's individual autonomy, including the freedom to make their own choices and their right to independence; and > > (b) respecting and promoting the person's own decision-making ability; and > > (c) ensuring that the person is free from neglect, abuse, exploitation and other forms of harm; and > > (d) the importance of preserving the dignity of risk of a person with impaired decision-making ability in respect of decisions is to be recognised and to inform those decisions; and > > (e) respecting the right of the person to be treated without discrimination; and > > (f) respecting the person's individuality, including personal or lifestyle activities that provide pleasure, purpose and fulfilment to the person; and > > (g) having regard to the person's existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment; and > > (h) respecting the right of Aboriginal and Torres Strait Islander people to enjoy their culture, including with other people who share that culture; and > > (i) respecting the person's right to privacy and to have contact with and correspond privately with others; and > > (j) recognising the importance of, and facilitating access to, the provision of supports that enable the person to exercise the person's autonomy; and > > (k) recognising the importance to the person of any companion animal that the person has and having regard to the benefits that may be obtained from the person having a companion animal.

12. Further, in exercising its powers under the Act, the Tribunal must have regard to the principles in s 8 of the Act, which provide:

8. Principles to be observed

(1) A person performing a function under this Act is to observe the following principles:

(a) a person's decision-making ability is to be respected and promoted;

(b) a person who requires support in decision making is to be provided with access to the support necessary to enable the person, as far as is practicable in the circumstances -

(i) to make and participate in decisions affecting the person; and

(ii) to express the person's will and preferences; and

(iii) to develop the person's decision-making ability;

(c) the views, wishes and preferences of a person with impaired decision-making ability in respect of decisions are to be respected and used to inform those decisions;

(d) the role of close family members, carers and other significant persons in the life of a person with impaired decision-making ability in respect of decisions is to be recognised;

(e) the importance of preserving the cultural and linguistic environment of the person is to be recognised;

(f) the personal and social well-being of a person with impaired decision-making ability in respect of decisions is to be promoted;

(g) the means which is the least restrictive of a person's freedom of decision and action as possible in the circumstances is to be adopted.

1. A health practitioner report (HPR) authored by Dr CD, QTD's general practitioner, was filed with the application for guardianship. The report is dated 20 February 2025. Dr CD states he has known QTD for five years and sees him one-three times monthly. Dr CD states QTD has impaired decision-making ability for some personal matters because he is unable to understand and "weigh risk: benefit of information".
2. Dr CD specifies in the report, in relation to decisions about care services that QTD "may need prompting on what might be helpful". In relation to decisions about medical and/or dental treatment and health care decisions, Dr CD states QTD "may need prompting to seek and follow up with treatment" and in relation to NDIS decisions, Dr CD states QTD "needs help navigating".
3. Dr CD further documents in the report in relation to decisions about restrictive practices - "Food related - Prader Willi predisposes to binge eating - morbidity needs control of finances and food restriction as it negatively impacts health".
4. Attached to the HPR is a Patient Health Summary, printed 28 March 2025 indicating QTD has a moderate intellectual disability with full scale intelligence quotient - FSIQ of 55. Attached to the application is a clinical report which is undated and does not identify the author. Page 2 of this report states "[QTD] currently retains decision making capacity".
5. We also had before us a report by Proficient Behaviour Support Practitioner ND of Our Focus who opined:

[QTD] is currently his own guardian; he retains full legal capacity to make decisions about food. Despite extensive support, [QTD] struggles to independently manage the risks associated with his diagnosis and health concerns. [QTD] continues to gain weight and experience medical complications, which impacts on his quality of life. Therefore, it is recommended that [QTD] be appointed a guardian to assist [QTD] with his health, medical and food decisions. The support from a guardian will reduce the risks to [QTD's] physical and mental health, improve consistency of care and support his long-term wellbeing.

6. The Tribunal placed weight on the evidence of Dr CD who has treated and assessed QTD for over five years. Dr CD assessed QTD as needing support and prompting when making his own decisions relating to personal matters. Dr CD did not attend the hearing and therefore was not available for questioning. On the written medical evidence before us, the Tribunal was not satisfied that QTD has impaired decision-making ability in respect to personal matters.

1. TD in his application states QTD has impaired decision-making capacity relating to dietary control and due to his genetic condition of Prader Willi Syndrome, he has a predisposition to seek out extra food above his nutritional requirements.
2. TD opined in the application:

There have been monthly care team meetings, with myself Service Co-ordinators and Managers from Possability Supports, Day Support Providers, Behavioural Therapists, Nutritionists and representatives from Public Trustees [sic] and [QTD's] Case Manager. These meetings have been to discuss possibilities and strategies to help [QTD] make better choices and decisions, with the least restrictive options. I do not believe these strategies have been sufficient in helping [QTD] to curb his predisposition and urges to obtain extra food beyond his nutritional requirements.... > > The Guardianship order will promote the person's personal and social well being by providing guidance with their decisions and assistance to making informative decisions independently.

3. At the hearing, TD told the Tribunal he had made the application to be guardian as he had concerns for his son's weight and health outcomes over the last few years and concerns regarding QTD's access to extra food which he felt is putting QTD's health and safety at risk.
4. In her report Proficient Behaviour Support Practitioner ND opined:

To support [QTD's] nutritional needs and reduce health risks associated with PWS [Prada Willi Syndrome], restrictive practices have been implemented at his Supported Independent Living (SIL). These include locking excess food in the fridge/freezer and pantry, located in the communal area, with support staff assisting [QTD] to access daily food baskets for breakfast and lunch. Dinner items are made available with support upon [QTD's] return from day service. While a meal plan was trialled, [QTD] prefers to choose his dinner each day. > > Initially, less restrictive approaches - such as portioning food into daily baskets - were implemented with positive engagement from [QTD]. However, these strategies became unsustainable due to [QTD's] impulse spending, frequent food delivery purchase (e.g., UberEats), and challenges with managing his grocery budget.

5. The Tribunal asked TD how, in his view, a guardian would in practice be able to restrict QTD's access to food. TD referred to service provider Possability's guidelines on restrictive practices and told the Tribunal that he could look at changing QTD's level of care, particularly on days where there was no 1:1 care available. TD said under Possability there are restricted access points in QTD's home with locks on the fridge, cupboard doors and pantry. TD also told us that his son orders food through uber eats and when the food is delivered to the house, staff are unable to say 'no' or can't suggest to QTD that the "food is not the best idea as this puts their position at risk".
6. TD also told the Tribunal there needed to be consultation with a dietician to formulate a diet for QTD with meal plans put in place to restrict the amount of food access to QTD daily under a dietary guideline.
7. The Tribunal asked TD how he could stop his son from ordering food. TD said there needed to be a consistent level of staffing who could discuss with QTD his choices and decisions.
8. UC, QTD's NDIS support co-ordinator, told the Tribunal that QTD has a NDIS package that provides two participants with one support worker in his home and on Saturday's there is 1:1 support. He said QTD has regular social outings on Saturday's and on Wednesday evenings and that at times he has a care support worker in attendance for some of the evening. He said the concern for the service was the amount of unrestricted food QTD was accessing. UC said the support staff can suggest to QTD choices but "they can't actually stop him eating what he wants to eat or what he wants to buy". UC said he believed the intention of the family and the allied health professionals is to "actually have legal control over those decisions to implore the staff or the family to actually take control and say no to [QTD] you can't do that".
9. QTD told the Tribunal he had recently been going out and ordering salads and that that this was his choice and decision he made with support.
10. UC told the Tribunal the service held monthly meetings and QTD was not privy to these meetings. The meetings are conducted by ND, the behavioural support practitioner and other allied health professionals including himself with discussion points centred around food restriction. UC said the day care support in QTD's home is managed well but it is the unsupervised periods that QTD had outside the home that was of concern as he could buy any food he wants in an unknown quantity.
11. Ms Hillier from the Office of the Public Guardian told the Tribunal she had read the Regulated Restrictive Practices in the Behavioural Support Plan and advised that the Office of the Senior Practitioner would call the locked food in QTD's house a therapeutic intervention. Ms Hillier said she assumed that to stop QTD from ordering uber eats his phone would need to be restricted or have the uber eats app removed from QTD's phone. Ms Hillier said that this would not be a role for a guardian. Ms Hillier further stated that instructing Possability staff to say 'no' to QTD when he is wanting choice and control in his life, was again not a role for a guardian and that an application would need to be made to the Office of the Senior Practitioner under the Disability Service Act 2011.
12. Ms Hillier sought the views of UC as QTD's support co-ordinator on what the Office of the Senior Practitioner had advised in relation to the application and why the Senior Practitioner was not at the hearing?
13. UC gave evidence that he was "not aware of the requirement of that Senior Practitioner". Ms Hillier asked UC if he was aware of the Office of the Senior Practitioner and what their role is? UC said he was not. Ms Hillier stated:

that would be very helpful in your role especially when there is a behavioural support plan that outlines restrictive practices because that will affect instructions of the staff and how the strategies and recommendations in the behaviour support plan are carried out by Possability staff, the training they will need around that which would, you know, the support co-ordinator would need to look at what funding is available in this plan that would allow for that training to allow for allied health professionals.

14. Ms Hillier suggested to UC that he, QTD and his father TD contact the Office of the Senior Practitioner about the process she had just outlined. UC gave further evidence that the behavioural support practitioner developed the training and processes around QTD's restrictive practices within the home and that he was not aware of the processes outlined by Ms Hillier.
15. Ms Hillier advised UC that restrictive practices need to be approved and the behavioural support plan guides staff to implement those restrictive practices.
16. The Tribunal asked Ms Hillier, based on the information she had provided at hearing, whether there was a need for a guardian. Ms Hillier said there was not.

1. Based on the evidence, we find there is no need for a guardian. The concerns outlined in the application by TD and vocalised at hearing are best addressed, in the Tribunal's determination, by an application for restrictive intervention under s 41 of the Disability Service Act 2011 in conjunction with consultation with the Office of the Senior Practitioner.
2. The Tribunal is satisfied that there is no role for a guardian in the restrictive practice of limiting food to QTD for health and safety reasons.
3. The Tribunal acknowledged the need for restrictive practices regarding food and are satisfied this type of practice is a restrictive intervention within the definition as outlined in s 4 of the Disability Service Act 2011:

Restrictive intervention > > Section 4 Interpretation > > Restrictive intervention means any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person but does not include such an action that is - > > Taken for therapeutic purposes; or > > Taken to enable the safe transportation of the person; or > > Authorised under any enactment relating to the provision of mental health services or to guardianship;