SHG [2024] NSWCATGD 2

NCAT Guardianship|2024-02-02|Before: Dr J, Windeyer J

Background

SHG is a 58-year-old man who suffered a traumatic brain injury in an accident in 1992 when hit by a vehicle while cycling. He is said to have significant dysarthria and cognitive impairment as a result. His main family involvement is his sister, EBF.
SHG has been a permanent resident of an aged care facility in west Sydney (the ACF) since 2001. He has been either in hospital or in another care facility since the accident in 1992, and has required permanent care. He now requires a hoist for all transfers.
Despite his age and disability, SHG is not a National Disability Insurance Scheme (NDIS) participant. The service provider of the aged care facility is not a registered NDIS provider. EBF stated she commenced the process of NDIS access for her brother after he moved into the aged care service provider. She decided not to proceed after being informed that he would need to leave the aged care service provider and move into a group home. He was very settled at the ACF at that time, and she and her brother, Mr Z, who live locally could visit him regularly. They were very satisfied with the care SHG was and is receiving, and moving him would have amounted to a major and unnecessary overhaul. He requires high level nursing care, and was receiving that in the ACF.
SHG was the subject of a guardianship order in the period 1996 to 1998, with EBF and his brother, Mr Z, appointed as his joint guardians.
In October 2023, PAC (Care Manager at the aged care service provider) applied for the appointment of a guardian to make decisions about the use of certain Restrictive Practices. NZH, Assistant Care Manager, became the substitute applicant.
The hearing and participants
At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]
The hearing was conducted at the ACF. SHG attended with EBF, NZH and Mr Y (the ACF General Manager). It was common ground that SHG was unable to participate meaningfully in the hearing due to the extent of his disability. When this became clear, SHG was permitted to return to his room.

What did the Tribunal have to decide?

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

Is SHG 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 SHG 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?

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)
In geriatrician reports from July and October 2023, Dr X indicates that SHG is bedbound and needs full assistance with all activities of daily living. He has a brain injury from the accident which has led to a permanent disability including dysarthria and cognitive dysfunction. He is not able to comprehend or communicate effectively. His cognitive impairment impairs his capacity to make decisions regarding any types of restraints. Similar views are expressed in a report from SHG's GP, Dr W, from October 2023. There was no evidence to the contrary, and the views expressed in the reports are consistent with SHG's presentation at the hearing.
On the strength of the current reports, the oral evidence and the previous findings, we were satisfied that SHG's cognitive impairment and dysarthria secondary to his brain injury causes him to be at least partly unable to manage his person, in the sense of making informed decisions about significant issues in his life. He is therefore a person for whom a guardian can be appointed.

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

The Legal Principles

In making decisions under the Act, the Tribunal is required to have regard to the general principles set out in s 4 of that Act. There are eight principles set out here which provide as follows in relation to the person with a disability: 1. The welfare and interests of such persons should be given paramount consideration 2. The freedom of decision and freedom of action of such persons should be restricted as little as possible 3. Such persons should be encouraged … to live a normal life in the community 4. The views of such persons … should be taken into consideration 5. The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised 6. Such persons should be encouraged … to be self-reliant in … their personal, domestic and financial affairs 7. Such persons should be protected from abuse neglect and exploitation 8. The community should be encouraged to apply and promote these principles.
In addition, the Act sets out in s 14(2) some specific considerations to be applied when considering whether to make a guardianship order. The Tribunal is directed to have regard to: 1. the views of the person, their spouse (if a continuing and close relationship exists), and the person who has the care of the person 2. the importance of preserving existing family relationships 3. the importance of preserving cultural and linguistic environments 4. the practicability of services being provided to the person without the need for making such an order.
Essentially, the Tribunal is directed to positively consider whether the circumstances of the life of the person under consideration requires the appointment of a legally authorised substitute decision-maker, or whether their need for appropriate decision-making can be achieved in other less formal ways.
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).
The application relates only to the need for a guardian to make decisions about the use of practices which are known as restrictive practices.
The applicant supplied the Care Plan which indicated the nature of the restrictive practice in place for SHG. It is identified as the use of bedrails which she identifies as a Mechanical Restraint under the Aged Care Act 1997 (Cth) and Quality of Care Principles 2014 (Cth) (the Principles) made under the Aged Care Act.
NZH told us that SHG is only in bed at night. During the day, he is transferred into a comfort chair or a wheelchair. She notes that the bedrails are for the primary purpose of SHG's safety. SHG's family requested the rails. The risk of using the rails was explained to the family and alternatives offered such as a "low low bed, monkey bar, floor sensor and bed sensor". The family chose to have the rails for comfort and safety reasons, and their choice was respected. The use of this restraint has been reviewed on a regular basis and discussed with family. On each occasion, the family has provided written consent to the continuation of the use of the bedrails.
In the matters of SZH [2020] NSWCATGD 28, and VZM [2020] NSWCATGD 25, the Tribunal found that the definitions contained in Pt 4A of the Principles are appropriate to be adopted by the Tribunal when considering applications in relation to people living in residential aged care. In VZM, the Tribunal considered the Principles. The Principles were made under s 96-1 of the Aged Care Act, and were amended by the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) that introduced regulatory requirements in relation to the use of restraints by residential aged care providers. These were further amended on 29 November 2019 by way of the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth). Part 4A of the Principles is headed Behaviour Support and restrictive practices - residential care and certain flexible care.
At the time that VZM was decided, the Principles categorised the forms of restraint used in aged care facilities as "physical restraint" and "chemical restraint". These terms were defined in s 4 of the Principles as follows: 4 Definitions … restraint means any practice, device or action that interferes with a consumer's ability to make a decision or restricts a consumer's free movement. chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. physical restraint means any restraint other than: (a) a chemical restraint; or (b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
In VZM the Tribunal commented on the different regulatory regimes applying to the aged care and disability sectors in the following terms: [53] The experience of this Tribunal and the former Guardianship Tribunal has been that when compared to applications made in relation to the use of restrictive practices in the disability sector in NSW, it has received comparatively few applications for guardianship for people living in residential aged care in NSW and in respect of whom restrictive practices are sought to be used. This does not, of course, mean that such practices have not been utilised, just that for those people who are unable to provide their own informed consent the appointment of a guardian to give or withhold consent to their use has not been sought. [54] We note that a complex regulatory landscape now exists by the development at a federal level of the two different schemes created under Pt 4A of the Principles and the NDIS Rules to address the use of restrictive practices and restraint, with different definitions of such practices and different obligations placed on those proposing to utilise the practice.
Since the decision in VZM there have been further amendments to the Aged Care Act. That Act now uses the term "restrictive practices" which is defined in s 54-9 of that Act: 54‑9 Restrictive practice in relation to a care recipient (1) A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient, and (2) Without limiting subsection (1), the Quality of Care Principles may provide that a practice or intervention is a restrictive practice in relation to a care recipient.
The Principles have also been amended with the effect that the regulatory regime in aged care now largely adopts the definitions that apply under the NDIS Rules. The amendments to the Principles include provisions that came into effect on 1 July 2021 and other provisions, such as those requiring the development of a Behaviour Support Plan, to come into effect on 1 September 2021.
The amendments to the Principles that came into effect on 1 July 2021 include the following: Division 2 - Restrictive practices 15E Practices or interventions that are restrictive practices (1) For the purposes of subsection 54‑9(2) of the Act, each of the following is a restrictive practice in relation to a care recipient: (a) chemical restraint; (b) environmental restraint; (c) mechanical restraint; (d) physical restraint; (e) seclusion. (2) Chemical restraint is 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: (a) the treatment of, or to enable treatment of, the care recipient for: (i) a diagnosed mental disorder; or (ii) a physical illness; or (iii) a physical condition; or (b) end of life care for the care recipient. (3) Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient's free access to all parts of the care recipient's environment (including items and activities) for the primary purpose of influencing the care recipient's behaviour. (4) Mechanical restraint is a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a care recipient's movement for the primary purpose of influencing the care recipient's behaviour, but does not include the use of a device for therapeutic or non‑behavioural purposes in relation to the care recipient. (5) Physical restraint is a practice or intervention that: (a) is or involves the use of physical force to prevent, restrict or subdue movement of a care recipient's body, or part of a care recipient's body, for the primary purpose of influencing the care recipient's behaviour; but (b) does not include the use of a hands‑on technique in a reflexive way to guide or redirect the care recipient away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the care recipient. (6) Seclusion is a practice or intervention that is, or that involves, the solitary confinement of a care recipient in a room or a physical space at any hour of the day or night where: (a) voluntary exit is prevented or not facilitated; or (b) it is implied that voluntary exit is not permitted; for the primary purpose of influencing the care recipient's behaviour. We are satisfied that the use of bedrails in SHG's case, if it is a restraint, could only fall within the definition of a mechanical restraint.
VZM was a case which involved similar but not identical circumstances. In that case, the subject woman had quadriplegia and was in an aged care facility where rails were used for her while in bed. Under the legislative framework then in force (using the different category of "physical restraint" rather than the current category of "mechanical restraint"), the Tribunal found that the use of bedrails in the circumstances of VZM did not amount to a physical restraint. This was because it was VZM's physical condition - her quadriplegia - which restricted her movement - not the use of the bedrails.
In this case, EBF strongly supported the continued use of the bedrails (for SHG's "safety"). She noted that he does not try to get out of bed, but he does roll towards the side of the bed. There are the padded bedrolls on the sides of the bed to prevent him injuring himself. NZH confirmed the information regarding the use of the bedrails and padded side rolls.
In association with the current Principles, the Australian Government Department of Health and Aged Care has published Factsheets on the Type of Restrictive Practices. While not binding on this Tribunal which must make its own determination, it is in the interests of the residents of aged care facilities to provide a consistent approach to the questions of whether a restrictive practice exists and how to obtain the necessary approvals. In relation to Mechanical Restraint, the Factsheet provides: "Mechanical restraint Mechanical restraint is a practice or intervention that is, or involves, the use of a device to prevent, restrict or subdue a care recipient's movement for the primary purpose of influencing the care recipient's behaviour. It does not include the use of a device for therapeutic or non‑behavioural purposes in relation to the care recipient. Examples of mechanical restraint include: bed rails; tray tables; belts; harnesses; restrictive clothing; splints or gloves; the use of straps to restrain any part of the body. Devices used for therapeutic purposes or non‑behavioural purposes are not considered to be mechanical restraints. These include splints/casts for broken bones, or wheelchairs for someone unable to walk long distances. Devices used for safety purposes or to prevent harm, even if consented to by the care recipient, are a mechanical restraint if not used for therapeutic or non‑behavioural purposes."
We note the words in the final paragraph. We accept that these words are consistent with the general intent of this legislative overview of restraint in age care facilities, which is to ensure that the use of a restraint of any form is a last resort, to prevent the type of abuse which was common in the past. It is also consistent with the findings of the panel in SZH which undertook a review of the common law.
The Tribunal in SZH found that that the issues are to be determined in accordance with the following principles at [127]: 1. whether a person is restrained is a question of fact to be determined on all of the available evidence as to the person's circumstances and the nature and extent of the restraint said to be imposed upon the person's freedom of movement and liberty (Re: EUY [2019] SACAT 51 at [82]); 2. the placing of "total restraint" on the person's movement is required in order to constitute false imprisonment. That "total restraint" need bear no similarity to what might normally be described as imprisonment. Compulsion, even of the mildest kind, to remain in a place, leave only with permission and to return to the place, may nevertheless be sufficient (Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413, [153]). Any "restraint within defined bounds which is a restraint in fact may be imprisonment": (Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 at 53-54); 3. the use of force or direct physical contact is not necessary in order to establish that a person is restrained; 4. lack of fault, in the sense of absence of bad faith, is irrelevant to whether a fact finding of detention may be made; 5. it is not necessary to find that the alleged restraint is against the person's will. A finding that restraint has occurred is possible even though the person is unaware that they are being restrained; 6. it is not necessary to find that the person has expressed a desire to end the detention, has taken active steps to do so or is physically able to do so.
The Tribunal in SZH also found there was no legal justification - such as the law of necessity - for the restraint imposed by the used of the coded exits at [140]-[150].
Finally, the Tribunal in SZH found that it would promote the subject person's welfare and interests to include a function enabling the guardian to make decisions about this form of restraint at [151]-[162].
On 1 July 2021 amendments to the Aged Care Act and the Principles came into effect relating to the use of restrictive practices in residential aged care
In brief, the effect of these amendments is to:

adopt the language of 'restrictive practices' rather than 'restraint' in aged care settings
include the following in the definition of 'restrictive practice': 1. chemical restraint 2. environmental restraint 3. mechanical restraint 4. physical restraint 5. seclusion
remove the 'consumer representative' provision and replace it with a 'restrictive practices substitute decision maker' defined as: "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"

Having considered these matters, we find on balance that the use of bedrails in SHG's particular circumstances amounts to the use of a mechanical restraint. It can be distinguished from the situation in VZM where VZM had no independent movement. We understand that the bedrails are in place for SHG because he is otherwise at risk of falling out of bed, due to his own independent, albeit unintentional and non-purposive, movements. SHG's "behaviour" in this case, is his movement towards the sides of the bed, and the bedrails are in place to prevent the risk of injury from this. In our view, this amounts to a mechanical restraint in the particular circumstances pertaining to SHG.

Consideration

On the basis of the above considerations, we were satisfied on the evidence that: 1. There are now important decisions to be made in SHG's life about his health care and medical and dental treatment, and the use of the said restrictive practice. 2. SHG is unable to make these decisions in an informed way due to his cognitive impairment secondary to his brain injury. 3. Under the provisions of the Act, decisions about a person's medical treatment can be made by a person responsible (except in the circumstances detailed below). The Act sets out a hierarchy of categories of persons who come within the definition of "Person Responsible". Decisions about most of SHG's health care, and his medical and dental treatment can and are being effectively made by EBF as his Person Responsible. There is no need therefore for her to be authorised to make these decisions under a guardianship order. 4. There are no other decisions that require the appointment of a guardian. EBF indicates and her brother and their families are satisfied with the care SHG is receiving at the ACF and their level of communication with staff. There are no plans for any change in his accommodation.
We, therefore, decided to appoint a guardian to make decisions about the use of the mechanical restraint of bedrails as a restrictive practice.
In making this order, we have been unable to consider SHG's views as he was unable to provide them. We are satisfied on the evidence as a whole that such an order is required in his best interests. Due to the current legal requirements as specified above, it is not possible to make these decisions without the appointment of a guardian. We are also required to consider the importance of preserving existing family relationships and the importance of preserving cultural and linguistic environments.
There was no evidence provided in relation to cultural or linguistic factors relevant to our decision.
We are satisfied that the appointment of a guardian will promote the strong relationships already in place between SHG and his siblings, by supporting their ability to continue to act in his best interests. We note that EBF has already been consenting to the use of the bedrails for SHG, and has been involved in regular discussions with staff regarding this.

Who should be the guardian?

NZH proposed EBF as SHG's private guardian. EBF agreed to be appointed in this role.
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])."
The Tribunal was satisfied that EBF meets the above criteria. She demonstrated at the hearing her profound understanding of SHG's circumstances, and her willingness and understanding of the role of guardian. She has previously been appointed as guardian and she has been supporting SHG and advocating on his behalf in the 31 years since his accident. There was no evidence or suggestion of any conflict of interest. In these circumstances, the Tribunal appointed EBF as SHG's guardian.

Need for Application for Special Medical Consent application

Amongst the material provided to the Tribunal was a medication chart which indicated that SHG is currently being administered Cyproterone Acetate 50 mg for "sexual behaviour".
NZH indicated that this medication had been last prescribed for SHG by his GP since November 2022, but that he had been on the same medication for at least five years. She and Mr Y noted that SHG "can be inappropriate with staff", and that he has a high sexual drive, and often "plays with his penis" when in the company of staff.
We noted that this is an Androgen-reducing medication, prescribed for the purpose of reducing SHG's libido. As such, it falls into the category of "special medical treatment" for which only the Tribunal can consent (refer definition in ss 33 and 45 of the Act, and reg 14 of the Guardianship Regulation 2016 (NSW)). It is not a medication for which EBF as Person Responsible can consent. It requires an application to be made to the Tribunal, which will then consider all factors including whether:

the treatment is the only or most appropriate way of treating the patient and is manifestly in the best interests of the patient, and
in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of that treatment -- those guidelines have been or will be complied with as regards the patient.

We expressed particular concern that some of the side-effects of long-term use of this medication may not have been effectively monitored including bone density.
We emphasise that administration of this medication for this purpose is unlawful without proper consent being obtained. Treatment should therefore be ceased and consent for re-administration of cyproterone only required and applied for on the advice of a specialist. If further consent is sought, the Tribunal will consider all alternatives including what non-medical/behavioural methods and carer education have been trialled and whether the behaviours are impacting negatively on SHG's wellbeing.
NZH and Mr Y noted these comments and undertook to take appropriate action without delay.

How long should the order last?

An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year.
In view of the concerns regarding the administration of Cyproterone Acetate without proper authorisation, we decided to make an order for just 12 months.

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: 24 May 2024

on Co. Ltd (1920) 122 L.T. 4 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075 Re: EUY [2019] SACAT 51 SZH [2020] NSWCATGD 28 VZM [2020] NSWCATGD 25 Texts Cited: Australian Government, Department of Health and Aged Care, Factsheet - Restrictive Practice use in residential aged care - Types of restrictive practices Category: Principal judgment Parties: Guardianship Application

At a glance

Court

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Judgment (10 paragraphs)

Legislation Cited (5)

Cases Cited (7)