SZH [2020] NSWCATGD 28 - NSWCATGD 2020 case summary — Zoe

NSWNSWCATGD

SZH [2020] NSWCATGD 28

[2020] NSWCATGD 28

NCAT Guardianship|2020-08-17|Before: Emeritus Professor P, Foreman AM

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At a glance

Source facts

Court

NCAT Guardianship

Decision date

2020-08-17

Before

Emeritus Professor P, Foreman AM

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

Background

SZH has lived at an aged care facility, with services provided by a charitable organisation in regional NSW, since late-2017.
Guardianship orders have previously been made for SZH from 2001 to 2006. The Public Guardian was appointed on each of these occasions. The Reasons for Decision of the Tribunal in relation to those orders provide a picture of SZH's significant difficulties with impulse control, disinhibition and self-neglect because of alcohol-related brain damage. Over this time he had periods of incarceration, homelessness, hospitalisation and short placements at various aged care facilities. Accommodation decisions were made on SZH's behalf by the Public Guardian but these living arrangements failed as SZH left these facilities to return to living on the streets. Again with the consent of the Public Guardian, SZH secured a placement at Nursing Home YZ in regional NSW in 2002. In view of the evidence that SZH had left a number of approved placements, the Public Guardian requested, and was given, the authority not only to make decisions about SZH's accommodation but also the authority to utilise other services, such as NSW Police and Ambulance Services, to bring him back to his place of residence.
When the order ended on 21 April 2006, the Reasons for Decision referred to evidence that by that time, SZH was no longer "absconding from the facility" and there was otherwise no need for a further order to be made.
SZH's finances have been managed by the NSW Trustee and Guardian (formerly the Protective Commissioner) since 2002.
On 27 April 2020 a new application for the appointment of a guardian for SZH was made by Ms Z, the former Centre Manager at the aged care facility. The evidence indicated that Nursing Home YZ closed in late-2017 due to the revocation of its accreditation by the then Australian Aged Care Quality Agency. SZH, along with every other resident, had to be moved from that facility on an urgent basis and he was accepted at his current accommodation, albeit without any involvement by a guardian or, on the available evidence, any family involvement.

In relation to the use of coded keypads, the applicant drew our attention to information contained in a Regulatory Bulletin issued by the Aged Care Quality and Safety Commission entitled "Regulation of physical and chemical restraint" (Issue No. 2019-8.1 Issue Date: 11 December 2019) ("Regulatory Bulletin") as providing the basis for seeking the appointment of a guardian for SZH. This stated as follows: 7. Is the use of a coded key pad on doors to exit the facility considered a restraint? Yes. Aged care providers may require consumers to use a PIN-code to exit the home. If the PIN code is not provided to the consumer, or if they are unable to use the PIN-code for other reasons (such as poor memory, vision impairment, out of reach), this restricts their ability to leave the home. A physical environment that restricts consumers' free movement is a physical restraint. The organisation must take the steps set out in the Principles for consumers who are subject to this form of restraint. The Commission would be looking for evidence that physical restraints of an environmental nature are based on the least restrictive option. For example, for consumers who have been assessed by an approved health practitioner as requiring this type of restraint due to a risk of harm to themselves or others, has the basis for this decision been noted in their care and services plan, is the decision for this restraint transparent and is it reviewed as circumstances change. Under the Quality Standards, the service environment is expected to promote the free movement of consumers including access to outdoor areas even if for safety reasons some consumers' access or egress is restricted. Arrangements to protect consumers need to be in line with their assessed care and services plan and the least restrictive option for them.
In relation to the placement of a bed against a wall, as well as the use of a bed rail which is not relevant to SZH's situation, the same Regulatory Bulletin stated as follows: 8. Is a bed against a wall or use of bed rails considered restraint? Yes. The use of bed rails or a bed pushed against a wall, are restricting the free movement of the person using that bed and therefore are considered restraint. This does not mean that the restraint cannot be used if a consumer requests this situation; rather, it means that the requirements in the Principles must be met. If the consumer has the capacity, they are able to consent to the restraint… In this circumstance, as in all circumstances (except in an emergency) where physical restraint is used, the Commission would be looking for the provider to demonstrate that: the provider has the informed consent of the consumer (or their representative); and the consumer is regularly monitored, and information is recorded in the consumer's care and services plan; and updates are made to the use of these restraints over time as the needs of the consumer change
The application and material in support also sought the appointment of a guardian to make decisions about advance care planning including end-of-life decisions for SZH.
Late in the hearing, evidence was also given by the substitute applicant that SZH is a participant in the NDIS and we also considered this matter in these proceedings.

[2]

Procedural matters

Three other applications for guardianship made in relation to other residents of the aged care facility (2010/438907, 2015/384472 and 2017/197698) were lodged at the same time as the application for SZH. Similar, although not identical, issues are raised in these applications to the issue raised in the application for SZH. An issue common to each of them is the use of a coded key pad on the external doors to the facility. In two of the cases (2015/384472 and 2017/197698), coded key pads are also utilised on the doors of the dementia-specific unit in which those two residents reside. Similar to SZH's situation, in relation to all three other residents, we were told that they do not have any family or friends involved in their lives.
In addition, applications seeking the appointment of a guardian for residents of a different NSW aged care facility were also received by the Tribunal (2009/474871 and 2018/226238). These applications raised similar, although not identical, issues in relation to the applications made on behalf of the aged care facility. However, the issue that is common between them is the use of a coded key pad on the external doors to the facility. The applicant's understanding in those two matters was also that a guardian needs to be appointed for those residents in order for lawful consent to be provided for the use of restraint as a result of the Quality of Care Principles.
In order to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), s 36(1)), we note the following:

Separate representatives were appointed for each of the six people in relation to whom applications for the appointment of a guardian were made. Ms Linda Rogers, solicitor, appeared in this role in relation to each person
Procedural directions were made in similar terms in relation to each of the six applications with the result that written submissions were able to be filed by the separate representative and the legal representative for the Public Guardian that addressed the issues common to each of the six applications
The hearings of the applications made in relation to the residents of the aged care facility commenced on 17 August 2020 and were adjourned on a part heard basis to 12 October 2020. On this latter date, the two applications from the other NSW aged care facility were also listed for hearing. This enabled issues common to each of the six applications to be addressed in a manner that reduced duplication and enhanced efficiency whilst also ensuring that the details and circumstances of each individual and the application in relation to each of them was considered on its own merits.
On 12 October 2020 the Public Guardian sought and was granted leave to be legally represented in each of the six proceedings. The application for leave was supported by the applicant and the separate representative. The Public Guardian was represented by Mr Higgins, Counsel, who was instructed by the Crown Solicitor.

We reserved our decision in relation to each of the six matters on 12 October 2020. We issued our order in relation to the application concerning SZH on 24 November 2020 and these are our Reasons for Decision.
It is apposite to note that there is nothing in the Aged Care Act or the Quality of Care Principles that is binding on the NSW Civil and Administrative Tribunal (NCAT) when considering whether it should appoint a guardian with the function of making decisions about restrictive practices or restraints (VZM [2020] NSWCATGD 25 ("VZM") at [57(1)]; HZC [2019] NSWCATGD 8 at [44]). It is nevertheless clear, however, that the regulatory scheme outlined in the Quality of Care Principles prompted the making of these six applications to NCAT and continues to form the basis of an increasing number of applications being received by NCAT.

[3]

The hearing

Due to the restrictions imposed by the COVID-19 pandemic, the hearings on 17 August 2020 and 12 October 2020 proceeded without any of the participants appearing in person. Instead parties and their representatives participated by telephone and videoconference.
At the end of these Reasons for Decision is a list of the people who participated in the hearing for SZH. [Appendix removed for publication.]
At the hearing conducted on 12 August 2020 SZH was present for a short period of time by telephone in the company of LBT. We attempted to engage with him but SZH left the room where he and LBT were located shortly after the hearing commenced and did not participate in the balance of the hearing on that date.
LBT informed us that she spoke with SZH on the Friday prior to the hearing on 12 October 2020 to inform him of the hearing and to ask him if he would like to attend. She again raised this with SZH on the morning of the hearing on 12 October 2020. According to LBT, SZH did not indicate any wish to take part in the proceedings.
The separate representative told us that she attempted to speak with SZH by telephone prior to the hearing date on 12 October 2020 but he declined to speak with her. The separate representative submitted that SZH has been provided with the opportunity to take part in the proceedings on 12 October 2020 but has declined to do so. In these circumstances, she had no objection to the Tribunal proceeding to hear the matter in SZH's absence.
We note that the Reasons for Decision of the Tribunal on 21 April 2006 made reference to SZH's involvement in that hearing as follows: [SZH] did not provide any view to the Tribunal. At the last hearing he was unwilling to speak with the Tribunal and the level of his cognitive impairment is such that he would be unable to appreciate the nature of the proceedings or give evidence or views to the Tribunal.
We decided to proceed with the hearing given that SZH has been provided with the opportunity to participate in these proceedings and he did so to a limited extent on 17 August 2020 but declined to do so on 12 October 2020. We were, however, unable to obtain his views about the matters that we needed to consider.

[4]

Is SZH a person for whom a guardianship order could be made?

Section 14 of the Guardianship 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": Guardianship 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 (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: Guardianship Act, s 3(2).
The documentary evidence provided to us, including reports from SZH's general practitioner, Dr Y, confirms that SZH has a diagnosis of alcohol-related brain disorder and frontal lobe damage. The evidence indicated that SZH has other physical health conditions including haemochromatosis. He is not prescribed any major medications, but does take other medications in relation to bone density issues and constipation.
In a written assessment form completed on 20 April 2020, the former Centre Manager recorded that SZH was unable to participate in a psychogeriatric assessment scale, used as a screening tool for cognitive impairment, and a cognitive checklist was utilised instead. SZH scored 4 on this test which LBT says indicates "severe impairment".
LBT told the Tribunal it was her view that SZH was incapable of caring for himself, or making safe decisions, due to his alcohol-related brain injury, and potentially the involvement of frontal lobe dementia. She said SZH is very resistant to personal care, and would be at very high risk of neglect if he were not provided full care. LBT said an example of this is SZH's incontinence, the fact that he goes to the bathroom only when staff take him, and that he will not ask for food or consider having a drink unless that is provided to him. LBT says SZH has complete lack of awareness of general goings-on around him and "everything is done for him".
The separate representative submitted that the evidence pointed only to the conclusion that SZH was a person in need of a guardian, and was incapable of making his own personal lifestyle decisions.
Ms X, on behalf of the Public Guardian, agreed that SZH was at least partially incapable of managing his own person.
Based on the evidence of the extent of his cognitive impairment which is described as "severe" arising from alcohol-related brain damage, frontal lobe damage and possible dementia, we were satisfied that SZH is restricted in important major life activities to such an extent that he requires supervision or social habilitation. He has a significant "need for services to help [him] function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
We were satisfied that SZH is a person for whom a guardianship order could be made.

[5]

Should the Tribunal make a guardianship order?

The real issue in contention in these proceedings was whether a guardian should be appointed for SZH in order to make decisions about any of the following matters: 1. The placement of one side of SZH's bed against the wall of his bedroom; 2. Advance care planning relating to end-of-life decision making; 3. NDIS planning; 4. The use of coded keypads at all exits of the aged care facility.
In deciding whether or not to make a guardianship order for SZH, we were required to consider the factors listed in s 14(2) of the Guardianship Act, relevantly the views (if any) of SZH, a spouse and unpaid carers (if any), the importance of preserving SZH's existing family relationships and cultural and linguistic environment, and the practicability of services being provided to SZH without the need for the making of a guardianship order.
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 Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
For the reasons previously outlined we were unable to ascertain SZH's views about these matters. There was no evidence to indicate that SZH has a spouse or others currently or previously involved in his care other than paid service providers.
We were not advised of any family relationships or cultural or linguistic matters that would be affected by making a guardianship order.
We took into account the evidence that SZH has had, to date, important services, including his accommodation and health care needs, met at the aged care facility without the appointment of a guardian: Guardianship Act, s 14(2)(d).
We had to consider, however, whether there were other services and aspects of his life that would benefit from the appointment of a guardian having regard to the principles set out in s 4 of the Guardianship Act.
We address in turn the evidence and our findings in relation to each of these matters.

[7]

Conclusion - bed positioning

In VZM the Tribunal determined that, subject to certain qualifications, the definition of "physical restraint" in the Quality of Care Principles should be adopted as an appropriate definition by the Tribunal as it "can be understood to comfortably include a broad range of practices which were historically regarded by the Tribunal as constituting restrictive practices" (at [57(6)]. The qualifications relate to an observation that the definitions used in the Aged Care Principles may not encapsulate all types of restrictive practices previously considered by the Tribunal to be such (at [57(7)]) and that the categories of restrictive practice in the aged care arena for which a guardianship order may be sought is not closed (at [57(8)]).
Under the Quality of Care Principles, "restraint" is defined in s 4 of that Act as meaning "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 in the same section as "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 medical disorder, a physical illness or a physical condition".
On the facts available to us, we find that although one side of SZH's bed is placed against a wall, he is not prevented from getting into and out of the other side of his bed. He is physically able to do so of his own accord. In our view, the placement of SZH's bed so that one side of it is against a wall does not amount to a physical restraint as that term is defined under s 4 of the Quality of Care Principles. Nor does it constitute a restrictive practice not otherwise captured by that definition as it is not a practice that would otherwise be unlawful under the common law (VZM, [47]).
We concluded that it is unnecessary to appoint a guardian in relation to the issue of the positioning of SZH's bed in this manner and that having regard to the principles set out in s 4 of the Guardianship Act, it would not promote SZH's welfare and interests pursuant to s 4(a) of that Act to do so.

[12]

The use of coded keypads at all exits of the aged care facility

The information provided by the original applicant and the substitute applicant indicates that exit from the aged care facility may only occur through a front door and an outer gate that are locked by a coded keypad. The passcode for both coded keypads is written next to the coded keypad on the outside of the outer gate and the outside of the front door of the facility. It is not written next to the coded keypad inside the facility next to the front door or inside the outer gate.
A swipe card is given to some residents of the facility and some family members of residents. The use of a swipe card enables the front door and outer gate to be opened without utilising the coded keypad.
The evidence is that these measures are taken to ensure the safety of residents who are unable to utilise the coded keypad or swipe card and who, due to cognitive and/or physical impairment, would be at risk if they left the facility.
According to the evidence, SZH is unable to utilise the coded keypad or swipe card due to the extent of his cognitive impairment.
We had to consider whether or not these circumstances could constitute a practice that would be unlawful under common law, such as false imprisonment.
If we found in the affirmative, we would then need to consider whether or not to include decision making authority about this particular issue in the guardianship order for SZH.
We note the views expressed by the Court of Appeal in State of NSW v Le [2017] NSWCA 290 ("State of NSW v Le") (at [3]-[4]) that even though the terminology of "false imprisonment" may be "conventional", the use of appropriate language is important to ensure the proper application of legal principle. Having regard also to the principles set out and language used in the case of Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 ("Darcy") (see [112] below), wherever possible we have used the language of "restraint" in considering SZH's circumstances.

[13]

Summary of written submissions in relation to coded keypads

Directions were made by the Tribunal on 10 June 2020 and 17 August 2020 requiring the parties to file and serve written submissions about a number of matters. This included the issue of whether or not the circumstances in which SZH resides in a locked aged care facility amounts to unlawful detention and/or a restrictive practice or restraint that requires the appointment of a guardian to give or withhold consent to the use of the restrictive practice or restraint.
The directions are set out in full in the Appendix to these Reasons for Decision.
Similar directions were made in the five other matters heard together with the application concerning SZH.
The applicant's written and oral evidence focussed on how coded keypads are used at the facility and the circumstances of each individual resident. This evidence as it relates to SZH is outlined later in these Reasons for Decision.
The separate representative and the Public Guardian both filed written submissions which applied to each of the six matters. These submissions are set out in full in the Appendix to these Reasons for Decision.
The separate representative's written submissions may be summarised as follows.
In relation to the use of coded keypads : (a) A coded keypad in an aged care facility will amount to detention when it prevents a person from leaving the facility either because they do not know the code or cannot use the keypad by virtue of their cognitive disability. (b) This will be the case even if the person is unaware that they are detained and they are not actively seeking to leave. (c) Where a person is not permitted to leave the facility other than under supervision and expected to return and remain in the facility the person remains detained. (d) Where a person cannot give their own consent to the detention and where there is no other lawful justification or authorisation, the detention will be unlawful unless authorised by a guardian with specific powers. (e) The justification of necessity cannot be relied on for the routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues.
The separate representative submitted that where the freedom of action of subject persons (s 4(b) of the Guardianship Act) has been restricted by virtue of an unlawful detention, it would be in the person's welfare and interests that a guardian be appointed to decide whether or not consent should be given and thus make what was unlawful lawful; unlawful detention is itself a form of neglect, abuse and exploitation (s 4(g) of the Guardianship Act); it could also be actionable under various intentional torts, such as false imprisonment; and is arguably a violation of a person's human rights.
The separate representative also submitted that the Tribunal should align its understanding of physical or environmental restraint with the common law understanding of detention rather than some other concept about whether a person is actively seeking to leave, which has no basis in law.
In the separate representative's view a guardianship order should be made.
The Public Guardian's written submissions in relation to whether or not a guardianship order should be made may be summarised as follows.
The Tribunal needs to assess: (a) whether the person is "disabled" within the meaning of ss.3(2)(a) (d) of the Guardianship Act; (b) whether, by virtue of such a disability, the person is "restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation"; and (c) whether, despite any need he or she has for "supervision or social habilitation" (s 3(2)): (i) he or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way (ss 4(a)-(c), 4(f)). (ii) he or she is in need of protection from neglect, abuse or exploitation (ss 4(a), 4(g). 33. Ultimately, what is done or not done, must be measured against whether it is in the interests, and for the benefit, of the particular person in need of protection and the Tribunal's obligation to minimise interference in the person's freedoms of decision and action: , s 4(a) and (b) ; Guardianship Act s. 4(a) and (b); Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48] (P v NSW Trustee and Guardian [2015] NSWSC 579). 34. As the Tribunal is aware, the criteria relevant to determining whether a guardianship order should be made are spelt out by ss 14(1) and 16(1)-(2) of the Act. 35. The Tribunal has a discretion as to whether or not to make a guardianship order, even where it has concluded that the subject person is "a person who has a disability" for the purposes of the Guardianship Act. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss. 4 and 14(2) of that Act, which the Tribunal must consider in deciding whether it should make an order. including whether their need for appropriate decision-making can be achieved in a less formal way (EQK [2016] NSWCATGD 29). The question should be approached on a case-by-case basis with regard to these legal criteria and the factual submissions put to it by the parties. 36. It is perfectly orthodox to anticipate that - as per the underlying logic of the Separate Representative's submissions - guardianship orders could authorise the guardian to consent on behalf of a person to various practices. But that anticipation need not be done with any reference to the legal concept of a "restrictive practice" as it is defined in the NDIS Act and the rules made under it. Furthermore, it need not be done with any notice of what obligations are owed by two of the three aged care providers under the Quality of Care Principles

[15]

Oral submissions made by the separate representative - characterising the use of a coded keypad lock system

The separate representative made oral submissions directed to SZH's particular circumstances. She said that despite SZH's ability to leave through the front door and front gate if he wished, he was still detained according to the legal principles, because leaving would only be under supervision and with the requirement that he would return. The separate representative referred to the case of Darcy, where the Court held that the subject person was being detained, despite her ability to leave the facility to visit her mother unsupervised, because she was ultimately required to return. The separate representative added that the degree or severity of SZH's detention is not material in terms of whether a detention exists on the facts, and that asserting that the facility had a duty of care was no legal justification for detaining SZH. She said the defence of "necessity" also did not arise on the facts, because any potential harm arising from SZH leaving was not imminent to the point of excusing the routine use of a coded keypad lock at all times, and referred the Tribunal to the case of Watson v Marshall (1971) 124 CLR 621("Watson v Marshall").
The separate representative said the only ways that the use of a coded keypad lock system such as in the present case could not amount to an unlawful detention would be: 1. If the person themselves gave valid consent; 2. If a guardian with appropriate authority gave consent; or 3. If the defence of necessity arose on the facts.
The Tribunal must take into account the principle set out in s 4(g) of the Guardianship Act that requires a person to be protected from neglect, abuse and exploitation. The separate representative said that the unlawful detention of a person may amount to abuse of that person, and so must be weighed by the Tribunal in the exercise of its discretion whether to make a guardianship order. The separate representative said that the Tribunal should also weigh the importance of not allowing someone with a disability to be subjected to something which a person without a disability would be free from, and she referred to the UN Convention on the Rights of People with Disabilities, noting that it was not binding on the Tribunal. She said appointing a guardian to consent or withhold consent to the unlawful detention would promote SZH's welfare and interests.

[16]

Oral submissions of the separate representative concerning the length and conditions on a guardianship order

The separate representative submitted that the order, though subject to review, would need to continue until SZH leaves the facility or passes away. In effect, she said the nature of the decision was one that requires ongoing consent to detention, which was more consistent with the nature of a decision about the use of restraint.
The separate representative also said that conditions imposed on a guardianship order with this function should reflect the Quality of Care Principles.
In comparison to matters related to intellectual disability, where a behaviour support plan is developed, she said that such a plan may not be as relevant in the aged care context. However, it is important for regular assessment to be made, so that there is regular reconsideration of what the "least restrictive" measures are in any given case.
In oral submissions at the hearing on 12 October 2020, the separate representative gave a further brief response to the written submissions filed on behalf of the Public Guardian. In effect, she said that she agreed with the Public Guardian to the extent of the submission that the Commonwealth Government's national regulatory schemes related to restrictive practices (the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) and the Quality of Care Principles) were not relevant for the purposes of the Tribunal's decision to exercise its discretion as to whether or not a guardianship order should be made.
The tenor of her submissions otherwise was that if the Tribunal was satisfied that a person was being detained without consent, according to the relevant authorities, then it would lead the Tribunal to consider appointing a guardian.
The separate representative said that in the event that the Tribunal finds the subject person is being detained, appointing a guardian for them would enhance the freedom of the person, because it would authorise the guardian to refuse consent to that practice.
We asked the separate representative what function of guardianship she would say appropriately described a power to consent to the use of a coded keypad lock system. That is - whether such a power was appropriately described as an accommodation function with additional powers to "authorise others" to enforce that decision, or a restrictive practices function, or some other function altogether. In response, she said it was difficult to make submissions when these matters had not been contemplated before, but that since the introduction of the NDIS and Aged Care Act regulatory frameworks, such measures are more typically described as restraints, so to characterise them as part of an accommodation function may cause undue complication.
We also raised the prospect that, in the event that a guardian is given power to consent to the use of a coded keypad lock system, this could result in orders being reviewed and made indefinitely because there is no likelihood that the subject person would regain capacity to consent to its use. The separate representative agreed, adding that it requires the Tribunal to "weigh up the benefit of the person in having the question of their detention examined by an external decision-maker versus any impact on their decision-making by virtue of the guardianship order".

[17]

Oral submissions made on behalf of the Public Guardian - characterising the use of a coded keypad lock system

At the hearing on 17 August 2020 Ms X on behalf of the Public Guardian submitted that there was no need for a guardian to be appointed because: 1. SZH was not seeking to leave, and never attempted to leave the aged care facility; 2. He was not being arbitrarily detained (his living arrangements were based on his support needs); 3. He was not impeded from leaving, and could leave with support.
Ms X said this facility was his home and SZH had no alternative home. She added that guardianship was no replacement for a "community protection order", and it was not as if he was involuntarily detained in a mental health facility.
In relation to the issue of the length of a potential order, Ms X said that if the Tribunal found SZH was being unlawfully detained in this case, and that there was a need for a guardian to be appointed, then a guardian "would need to be appointed indefinitely for every person in residential aged care" in circumstances akin to SZH's.
She submitted that an accommodation decision had been made for SZH, and that, as it had already been made, there was no need for a guardian to be appointed.
Mr Higgins, Counsel for the Public Guardian, made oral submissions that may be summarised as follows.
To the extent the authorities say that the practice of using the coded keypad system amounts to a false imprisonment, Mr Higgins said there were other authorities to say it did not. He referred the Tribunal to the case of McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289, at [41]: Be all that as it may, however, it remains that the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will. Accordingly, where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that conduct of the defendant have contributed to or influenced the plaintiff's decision to remain unless the conduct has overborne the plaintiff's will. It must be shown that, but for the defendant's conduct, the plaintiff would not have yielded to the total restraint; that the plaintiffs' determination to remain was a coercive consequence of the defendant's acts.
In particular, Mr Higgins noted the requirement that there be a "total restraint" on the person in order to establish a wrongful imprisonment or "detention", emphasising that the operative part was a "total deprivation" of the liberty of the individual. He said that, for example, one of the other residents of the aged care facility whose application for guardianship was heard on the same day as SZH's, was able to move freely around the memory support unit in which she resides and around the garden leading out from that unit, and could leave the facility as she wished so long as she was accompanied.
After further questioning from the Tribunal on the authorities in Darcy and The Public Advocate v C, B [2019] SASCFC 58 ("The Public Advocate v C,B"), among other cases, Mr Higgins said the Public Guardian's view does not differ from those cases, but that it was concerned more with the circumstances which caused the subject person to be housed at the facility in the first place, and the utility of appointing the guardian when the only decision for it to make would be whether to move the person elsewhere. He said each individual case would require consideration.
When asked what practical benefit a guardianship order would have in the circumstances of, for example, SZH, Mr Higgins said: "None".
When asked by the Tribunal whether the circumstances in The Public Advocate v C,B bear similarity to the current case, Mr Higgins said: "It does". When asked why, then, might the Tribunal not make a finding that the circumstances in SZH's case amounted to false imprisonment, Mr Higgins said "you could". Mr Higgins said the reason why a guardianship order should not be made was one of utility, that is - the question of "what decision could be made that isn't already being made?" He said appointing a guardian in these circumstances would amount to "rubber-stamping".

[18]

What constitutes restraint amounting to false imprisonment?

In Darcy, Whealy JA (with whom Allsop P and Beazley JA agreed) stated: 141 In the 10th edition of Fleming's The Law of Torts the learned authors say (at p 36 [2.80]): The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. 142 It is further observed, in the same paragraph, that the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but that it has long outgrown these simple beginnings. 143 The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullager J in the following terms: The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise. 144 The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential (R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289). The restraint must be upon a person's liberty to come and go and must be against his or her will (Second Restatement of Torts (1965) United States; Gavin McFadzean v Construction, Forestry, Mining and Energy Union (CFMEU) [2007] VSCA 289 at [37]). 145 Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation: State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 at [282]. 146 This statement of the relevant principles is not intended to be a comprehensive one. Rather, it is confined to the issue in this appeal. The principles, as stated, are not essentially in contest as between the parties. The principal contest, as will have been seen, is as to their application to the facts I have earlier stated in comprehensive detail.
In Darcy, the plaintiff was a young woman for whom the Public Guardian was appointed. She originally moved to Kanangra, a large residential centre, following an order of the Local Court that initially kept her in a highly secure environment but led to her living in less restrictive parts of the facility. She remained living there for a number of years. Despite her wish and that of the Public Guardian that she leave Kanangra, this did not occur for a number of reasons. The evidence was that Ms Darcy made frequent trips outside Kanangra including to the local shopping centre and train trips to see her mother. Whealy JA accepted on the evidence that Ms Darcy was allowed to leave the institution on many occasions. He concluded, however (at [153]): …that the facts in the present matter require a finding that Ms Darcy was detained, in the sense that this expression is used in the tort of false imprisonment. It is clear that Ms Darcy could not leave Kanangra without permission and, whenever permission was given, she was obliged to return to the institution at the conclusion of her sojourn. She was compelled to remain there and to return there, even though the compulsion was of the mildest kind. The principles I have earlier indicated demonstrate that "any restraint within defined bounds which is a restraint in fact may be imprisonment" Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 per Lord Acton.
Highlighting also the original circumstances in which she came to be at Kanangra but that her living arrangements over time changed from a secure environment to one that was less so, his Honour noted (at [154]): It seems to have been assumed by everybody involved (including Ms Darcy herself) that she was not free to leave Kanangra unless and until alternative accommodation was made available for her in the community. Although the "total restraint" imposed on Ms Darcy by her continued detention at Kanangra bears no similarity to what might conventionally be described as "imprisonment", it was detention, in my opinion, nevertheless.
The tort of false imprisonment does not need to involve the use of actual force or direct physical contact (Watson v Marshall, at 626; The State of Western Australia v Cunningham [No 3] [2018] WASCA 207, [149]). It is a tort of strict liability and therefore lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong (Ruddock v Taylor (2005) 222 CLR 612, [140] (Kirby J); State of New South Wales v TD [2013] NSWCA 32, [53] (Basten JA; Bathurst CJ, Barrett JA, Hoeben JA and Sackville AJA agreeing). It is actionable per se (Elleray v Rail Corporation NSW [2017] NSWCA 23, [4]) and therefore a plaintiff does not have to prove damage as an element of the tort rather than for the purpose of awarding compensation.

[19]

Knowledge of the person allegedly restrained

The authorities previously noted indicate that the alleged restraint must be against the person's will (Darcy, [144]). In Darcy it was not in contention that the plaintiff was unhappy living at Kanangra and had expressed a wish to live elsewhere on many occasions (Darcy, [13]) and this element of the test of whether false imprisonment had been made out was satisfied. However the Court also acknowledged (at [146]) that the statement of principles set out in that decision was not intended to be comprehensive and was confined to the issues in that appeal.
What then is the position for a person who is unaware of their alleged restraint?
We have been unable to identify any NSW appellate authority involving a factual scenario in which the plaintiff is unaware of their alleged restraint in the context of an action for false imprisonment.
Other common law authority supports the view, however, that the tort may be committed even if a plaintiff does not know that they are being restrained. In Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 44 ("Meering") Atkin L.J. stated (at 53-54): It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic. Those are cases where it seems to me that the person might properly complain if he were imprisoned, though the imprisonment began and ceased while he was in that state. Of course the damages might be diminished and would be affected by the question whether he was conscious of it or not. So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although he does not know that the key has been turned. … If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or policemen. They serve the same purpose. Therefore it appears to me to be a question of fact. It is true that in all cases of imprisonment so far as the law of civil liberty is concerned that ''stone walls do not a prison make,'' in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment.
This approach was adopted by the House of Lords in Murray v Ministry of Defence [1988] 2 All ER 521 (1 W.L.R. 692) ("Murray v Ministry of Defence") who gave, in summary, two reasons for its adoption. First, that it was not difficult to envisage cases in which harm may result from unlawful imprisonment even though the victim is unaware of it (p 529). Second, "the law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage" (p 529).
Comments made by the NSW Court of Appeal in State of NSW v Le may be understood as leaving open for consideration in an appropriate case whether the principle set out in Meering is to be followed. The relevant circumstances in State of NSW v Le involved a face-to-face confrontation in a public place and the Court stated that it was "not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his liberty, as occurred in Meering …" (at [7], Basten JA, Leeming JA and Payne JA).
In State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, however, the Full Court of the Supreme Court of South Australia (at [290]-[296]) referred to the "solid body of authority supporting the conclusion that the fact that a plaintiff is not aware of a restraint on him or her, or is not physically able to exercise his or her freedom of movement, does not mean that wrongful imprisonment cannot be made out" (at [289]). See also Lewis v Australian Capital Territory [2020] HCA 26, at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection [2015] HCA 1, [155] (Hayne and Bell JJ).
In the decision of The Public Advocate v C,B, the Full Court of the Supreme Court of South Australia cited the relevant passage in Meering (at [67]-[68]) before arriving at the conclusion that the trial judge in had correctly found that BC's movement was restricted by his residence in a locked ward of the aged care facility in which he lived and that those restrictions constituted the torts of false imprisonment and/or trespass (at [5] Kourakis CJ, Kelly and Hinton JJ agreeing).
In that case, BC was a 95-year-old man with dementia of moderate severity who "did not have capacity to make decisions about his own health, safety and welfare including where he should reside" (at [1]). Under the Guardianship and Administration Act 1993 (SA), the South Australian Civil and Administrative Tribunal had appointed the Public Advocate to be BC's limited guardian for the purposes of his 'accommodation and lifestyle' decisions and his wife as limited guardian in relation to health care. The locked door of the unit could be opened only by entering a code, not known to BC, into a keypad or by swiping a card, which BC did not have, over an electronic sensor (at [3]). Evidence was given by the general manager of the facility that BC had not specifically asked to go into other areas of the facility and was not aware of specific requests made by BC to leave the facility (at [63]). BC's ability to exit the locked unit was restricted to those occasions when he would be escorted outside by a member of staff or a permitted family member (at [63]). The former occurred because of concerns about BC's safety and risk of falls and his periods of confusion that could lead to disorientation if on his own in the general area of the facility (at [63]). The latter could only occur subject to guidelines issued by the Public Advocate in relation to access to BC by certain family members (at [61]).
The Court concluded (at [72] Kourakis CJ, Kelly and Hinton JJ agreeing) that: The Judge was plainly correct to find that BC was detained. Whilst in the locked ward there can be no question that he was so detained because he neither knew the code nor had a card. On those occasions when he was allowed to leave whilst accompanied by another person, it is clear that if the Public Advocate's directions were followed, it would have been clearly conveyed to BC that he was required to return. BC remained in detention even though no physical force might have been required because of his submission. Even if BC was not detained in that way on the occasions he was allowed to leave the locked ward, and it was the fact that he was occasionally given his liberty, those occasions could not change his status as a detained person whilst he was in the locked ward. It follows that BC was unlawfully detained.
We have had careful regard to the principle set out in Darcy that in order to constitute the tort of false imprisonment, the restraint imposed on a person, amongst other things, "must be against his or her will" (at [144]) but also that the Court acknowledged that its statement of principles was confined to the issues before it (at [146]). Unlike the factual scenario in Darcy in which Ms Darcy was able to, and did, express views about the restraint placed upon her, SZH is unable to do so. On the basis of the authorities outlined above, we have concluded that in considering whether SZH's circumstances amount to "a "total restraint" on his movement, it is not necessary to find that the restraint is against his will. Rather, this finding may be reached even though SZH may be unaware of the alleged restraints on his liberty and lacks the capacity to give or refuse consent to those restraints.

[21]

Findings in relation to SZH's residential circumstances

Having regard to the written and oral evidence provided by the original applicant and substitute applicant, both of whom held and currently hold senior management positions at the aged care facility, and noting that these factual matters were not disputed by any other party or the separate representative, unless otherwise noted we accepted that the following matters were established to the requisite civil standard.
SZH resides in the general area of the facility.
There is also a separate, locked area of the facility referred to as the "memory support unit" which is a dementia-specific unit. SZH does not live in that part of the facility.
In relation to issues of entry to and exit from the facility: 1. The front door is locked by a coded keypad. 2. The passcode for the keypad is the postcode for the [regional town in which SZH lives]. This was chosen to make it easy for people to remember. 3. In order to exit through the front door, any person, including a resident of the facility, would either need to know the passcode or to utilise a swipe card given to them by the facility. An outer gate is also locked by a similar coded keypad. This requires the same passcode to be entered in order to exit through the gate. A swipe card issued by the facility would also allow exit through the gate. 4. For people wishing to enter the facility, the passcode is written next to the coded keypad on the outside of outer gate and on the outside of the front door of the facility. Some family members of residents are also given swipe cards to enter the facility including after normal business hours. 5. The passcode is not written next to the coded keypad inside the facility next to the front door or inside the outer gate. 6. LBT explained that the passcode is not written next to the coded keypad on the inside of the facility because there are many residents who would become very confused if they left the facility. LBT said that there is always a staff member at the front desk during business hours who could open the front door if a resident could not operate the coded keypad.
In relation to SZH's particular circumstances: 1. SZH lives on the first floor of the facility and he is free to come and go as he pleases within the confines of the facility. 2. Due to the extent of his cognitive impairment SZH is not able to remember the passcode and would not know how to use the keypad even if he were given the passcode. 3. Some of the residents have a swipe card to open the door and gate without entering the passcode. SZH does not have a swipe card. LBT's evidence was that she has asked SZH on at least two occasions in the last six months whether he would like a swipe card. According to LBT, SZH looked at LBT "as if [she] had two heads" and said no. 4. SZH is generally reluctant to leave his bedroom. LBT said it "takes a lot to get SZH out of his room…the only time he comes out of his room is to walk up and down the hallway to make sure everyone else's doors are shut, then he goes back to bed - that's it". We understood from the documentary material provided by the original applicant, and confirmed by LBT, that this behaviour of shutting doors stems from childhood trauma and SZH's practice as a child of closing the bedroom doors of his siblings so that they might be protected from abuse. 5. To LBT's knowledge, SZH has never asked, on his own accord, to leave the facility, nor indeed left the facility on his own accord. 6. In the last week or so, (before the hearing on 12 October 2020) SZH left the facility on two occasions in the company of his NDIS support worker. Those trips had been arranged for him so that his NDIS Support Worker could take him to a McDonalds drive-thru. According to LBT's evidence, when asked if he would like to go on these trips, SZH said "yes". 7. We asked LBT what would happen if SZH did ask to leave the facility of his own accord. LBT told us that a receptionist is stationed at the entry/exit area in business hours, and would seek nursing staff assistance if SZH attempted to leave and required help. Nursing staff would then attempt to get more information from SZH to find out why he wanted to leave. This was because it would be an unusual request for SZH to make and nursing staff would want to check that there was not some other reason, such as illness, that would cause this change in behaviour. 8. LBT said that, upon finding no reason to keep him from leaving, if SZH wanted to exit through the front door, someone would enter the code for SZH, or use a swipe card to exit the facility. 9. If SZH wanted to walk around the grounds of the facility he could do so. However if he wanted to leave through the outer gate he would need to be accompanied. LBT said that someone would need to accompany SZH because he only ever answers questions with "yes" or "no", and if he became lost, he could not tell someone where he lives. It would also be physically unsafe for him to leave unaccompanied as he has difficulties with mobility and balance. 10. SZH would be expected to return to the facility because he requires high level care and has no other place of residence. 11. Unlike the cases of Darcy and The Public Advocate v C,B in which the plaintiffs each had a guardian appointed with the legal authority to make relevant decisions, SZH does not have an appointed guardian. Nor does he have any family or friends involved in his life. No-one has the formal legal authority to make decisions on SZH's behalf. The reality is, however, that as a result of the impact of SZH's cognitive impairment on his decision making ability and the absence of any other person, family or friend, to take an active role in his life, the management of the aged care facility is left with little option but to make decisions on SZH's behalf on an informal basis and do so on the basis of their understanding of the duty of care that they owe to SZH. This includes decisions in relation to the circumstances in which he is permitted to leave the facility and the requirement that he return to the facility should he leave it.

[22]

Findings in relation to restraint

We find that SZH lives in an environment in which the door and front gate are locked at all times unless someone is passing through them. The only way to unlock the door and gate is either by entering a passcode into a keypad or passing a swipe card over a sensor. SZH is unable to do either of these things due to the extent of his cognitive impairment. There are no other means of exit from the facility.
SZH is permitted to leave the facility as long as he is accompanied by a staff member or other person known to the facility such as his NDIS support coordinator. He must be returned to the facility at the conclusion of any time away. These requirements are imposed by the management of the aged care facility in order to ensure SZH's safety.
We are satisfied that the conditions under which SZH resides at the facility involve a total restraint on his freedom of movement as he is unable to unlock the front door and gate of the facility. He is not able to leave the facility unless he is accompanied and he must be returned to the facility if he leaves.
As noted by Whealy JA in Darcy, whilst the "total restraint" imposed on Ms Darcy in that matter "bears no similarity to what might conventionally be described as 'imprisonment', it was detention…nevertheless" (at [154]).
We find that SZH is restrained even though we are satisfied that he is unaware of being restrained and, on the available evidence, has never asked to leave the facility or attempted to leave the facility of his own accord. He is restrained even though physical force is not required to prevent him from doing so due to his submission or passive acquiescence.
We arrive at this finding bearing in mind that the restraints placed on SZH's freedom of movement are so placed with the intention of ensuring SZH's safety, as well as the safety of other residents. On the basis of the authorities previously outlined, however, as the tort of false imprisonment is one of strict liability, lack of fault, in the sense of absence of bad faith, is irrelevant.
The fact that SZH has been able to leave the facility on two occasions in recent times in the company of his NDIS support coordinator does not alter his status as a detained person whilst he was in the locked facility (The Public Advocate v C,B, (at [72]).

[23]

Is SZH's restraint justified?

We find that SZH is unable to give his own informed consent to his restraint.
We considered whether the restraint is otherwise authorised, justified or excused by statute or at common law. As Allsop P observed in Darcy at [2]: [t]he question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law.
There are circumstances where a person can be physically restrained in a lawful way, for example under the provisions of the Mental Health Act. None of the parties was able to draw our attention to any legislative basis for SZH's ongoing restraint at the facility and we find there is none.
The common law doctrine of necessity may be relied on in limited circumstances to justify what may be otherwise regarded as a trespass to the person.
The separate representative submitted in written and oral submissions, however, that the justification of necessity cannot be relied on for routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues. The justification, according to the separate representative, contemplates only an imminent danger of injury to the person or others.
The Public Guardian's submissions did not address this issue.
The defence of necessity to an action in trespass is available only if a state of "imminent peril" is demonstrated and the steps taken in response were reasonably necessary at the time they were taken (State of New South Wales v McMaster [2015] NSWCA 228, [216]-[225] (Beazley P, with whom McColl and Meagher JJA agreed); State of New South Wales v Riley, [84]-[85] (Hodgson JA, with whom Sheller JA and Nicholas J agreed).
In Darcy, Whealy JA noted (at [188]) there 'is a power to impose a temporary restraint on a person who "has run amok and is a manifest danger either to himself or to others" (B v Forsey (1988) SC HL 28 per Lord Keith at 63, Lord Griffiths at 68)'. Whilst not needing to resolve the issue of whether the doctrine of necessity justified the detention of the appellant in that case, his Honour nevertheless observed (at [190]) that "it could not be said that the doctrine of necessity could possibly extend to permit the detention of a person for the period of time Ms Darcy was kept at Kanangra. There is no authority that would allow such a lengthy detention."
Having regard to these authorities we have taken the view that it is unlikely that the common law defence of necessity is available in relation to the restraint of SZH which involves a situation of long term residential care in an aged care facility.
There was no other common law defence or justification put to us as to form a possible basis for SZH's restraint and we find that there is none.
As a consequence, we find that SZH's circumstances could constitute the tort of false imprisonment.

[24]

Should a function be included in a guardianship order for SZH in relation to restraint?

In considering which decision-making functions to include in a guardianship order for SZH (s 16(2)(b) of the Guardianship Act), we had to consider whether our finding that SZH's circumstances could constitute the tort of false imprisonment should lead us to exercise our discretion to provide a guardian with decision making authority to give or withhold consent to his restraint. We had to do so having regard to the principles set out in s 4 of the Guardianship Act.
We have carefully considered the proposition put on behalf of the Public Guardian that there is no utility in appointing a guardian in these circumstances, the argument being that "what decision could be made that isn't already being made" and would amount to "rubber stamping".
As noted in VZM (at 60], accepting this position potentially exposes providers to civil liability unless the practice is authorised, justified or excused by law.
More fundamental in our view, however, is that accepting this argument would not be an appropriate approach having regard to the principles set out in s 4 of the Guardianship Act for the following reasons.
It does not promote SZH's right to live a normal life in the community (s 4(c) of the Guardianship Act) if his living arrangements constitute false imprisonment. Other members of the community do not expect to be restrained in this manner.
Nor does continuing to live in such a situation promote SZH's freedom of action: Guardianship Act, s 4(b).
Weighing against the appointment of a guardian could be the argument that appointing a substitute decision-maker and thereby removing decision making authority from SZH in itself restricts SZH's freedom of decision and action rather than promoting it. However we note and agree with comments made in MAQ [2016] NSWCATGD 70 at [34] that: …it is flawed logic to suggest that where the nature of the subject person's decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the "least restrictive option". Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions.
Under the NDIS planning processes that have occurred for SZH, it is also unclear whether consideration has been given to whether a locked aged care facility is appropriate accommodation for SZH on an ongoing basis. The evidence before us indicated that SZH has lived in aged care for many years and commenced doing so at a relatively young age when he was considered to be placing himself at risk by leaving places of accommodation to return to living on the streets. On the available evidence he no longer seeks to do so. No-one was appointed to make decisions on SZH's behalf in relation to his placement at this aged care facility, or in relation to his NDIS plan, and these may be matters that would be in SZH's interests to review.
Having regard to SZH's particular circumstances we are not prepared, however, to accept the separate representative's submission that his unlawful restraint amounts to "abuse" as that term is used in s 4(g) of the Guardianship Act.
In our view, it would promote SZH's welfare and interests (s 4(a) of the Guardianship Act) for a guardian to be appointed to decide upon the circumstances of his restraint. Due to the impact of SZH's cognitive impairment, he is unable to give or withhold consent to the circumstances in which he is living. It is appropriate and in his interests for a guardian to have the authority to do so in his stead. Providing a guardian with this authority recognises not only the fundamental importance of SZH's right to freedom of movement and liberty, but also ensures that any restriction on those rights (ss 4(b) and (c) of the Guardianship Act) is properly considered by someone with the legal authority to do so in circumstances where SZH is unable to do so on his own behalf.
After careful consideration of all matters relevant to SZH, a decision may be made to consent to the restraint. Alternatively the decision may be to withhold consent. What may flow from the latter decision would be a matter for the appointed guardian taking into account all of SZH's circumstances.
We are cognisant that unlike some other Australian jurisdictions whose legislation specifically recognises the issue of detention and gives the relevant Tribunal the authority to approve or not approve detention (see, for example, s 32(1)(b) of the Guardianship and Administration Act (SA) that provides that the Tribunal "may, by order, authorise the detention of the person in the place in which he or she will reside"), the NSW Guardianship Act does not do so. It is not clear that the intention of the drafters was that the guardianship regime would extend to appointing a guardian with the authority to decide about the ongoing restraint of people with cognitive disabilities. The application of the Guardianship Act over its history has however accommodated the changing needs of the NSW community. Those changing needs include the increasing number of residents of residential aged care facilities who are unable to make informed decisions about important aspects of their own lives. For residents who are able to successfully navigate a "locked facility" and utilise the means of exiting the facility, whether that is a coded keypad, swipe card or some other means, they are not restrained. For someone in SZH's position who is unable to do so, paramount consideration is not being given to his welfare and interests (s 4(a) of the Guardianship Act), in our view, if he is subject to the potential of unlawful detention without a means of having a decision made on his behalf to either make the detention lawful having regard to all relevant considerations, or not.

[25]

What function is appropriate - accommodation or physical restraint?

We had to consider which function to attach to the guardianship order that would give the appointed guardian the requisite decision making authority under s 16(2)(b) of the Guardianship Act.
The function of accommodation may be included in a guardianship order when there is a need for decision making about where the person under guardianship should live and the person is incapable of making a decision on their own behalf about this matter. In circumstances in which a person disagrees with the decision made by the guardian and their decision-making incapacity results in them making decisions which expose them to neglect, abuse or exploitation, or they are incapable of making important decisions and others make decisions on their behalf which may cause neglect, abuse or exploitation, then additional authority may be conferred on the guardian to ensure that the guardian's decision may be implemented (NIQ [2014] NSWCATGD 28, [51]-[52]). This function often takes the form of the guardian being given the ability to authorise others, such as police and ambulance services, to take a person to a place approved by the guardian, to keep the person at that place and to return the person to that place should they leave. The legislative basis for this type of function is found in s 21A(1)(c) of the Guardianship Act.
It is possible that this type of function may be appropriate in SZH's case. For example, the guardianship order could specify that a specified person, such as an appropriate officer of the aged care facility, is empowered to take such measures or actions as are specified in the order, such as "keeping" SZH at the facility by way of the use of coded keypads.
As mentioned previously, the separate representative submitted, however, that since the introduction of the new regulatory framework under the Aged Care Act and under the NDIS, such measures are more typically described as restraints and that to characterise them as part of an accommodation function may cause undue complication.
We decided that it is appropriate to describe the function of guardianship in this matter as one of a restrictive practice involving "physical restraint", as that term is defined in s 4 of the Quality of Care Principles, rather than as an accommodation function. As noted in VZM (at [57(2)]), consistency in the way definitions are applied in the aged care arena and within the Tribunal "would promote the welfare and interests of people in relation to whom restrictive practices are being used in residential aged care facilities in NSW".

[26]

Conditions

The Tribunal in HZC provided (at [32]-[36]) a brief history of the nature of restrictive practices and the role of the Tribunal. This included recognition 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. When appointing a guardian to authorise the use of restrictive practices, the Tribunal has traditionally imposed conditions upon the appointed guardian's authority to do so (pursuant to s 16(1)(d) of the Guardianship Act). As noted in HZC (at [100]), these conditions have "usually been framed such that an appointed guardian may only consent to the use of restrictive practices to address challenging behaviours within the context of a comprehensive positive behaviour plan". More recently, in the case of recipients of services from NDIS service providers, the Tribunal has reframed the relevant condition so that it more closely equates with the regulatory requirements imposed by the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (HZC ([101]).
In the evidence before us concerning SZH, there is, however, no suggestion that he exhibits any behaviours of concern (or "changed behaviours" (VZM [57(11)]) that require the use of locked keypads. It is the finding that SZH is unlawfully restrained that has led to our decision to appoint a guardian with the physical restraint function, not because of any behaviours of concern that require the imposition of these measures. There may of course be other applications to come before the Tribunal involving residents of aged care facilities in which restraint is sought to be utilised to manage behaviours of concern, and the existence and quality of behaviour support strategies will need to be considered. It is not however the case in relation to this application concerning SZH.
Accordingly, on the evidence before us in this matter, we have not included a condition in the order that requires the development of a behaviour support plan to address behaviours of concern related to SZH's detention. The reality is that there are no forms of behavioural support that could be provided to SZH that are going to result in the removal of the coded keypads at the facility in which he lives.
As previously noted, the separate representative submitted that it is important that any conditions included in an order of this nature should ensure that there is regular reconsideration of what the "least restrictive" measures are in any given case. The Public Guardian did not make a submission about this issue.
Having regard to the principles that paramount consideration should be given to SZH's welfare and interests (s 4(a) of the Guardianship Act) and that his freedom of decision and freedom of action should be restricted as little as possible (s 4(b) of the Guardianship Act), and also having regard to the relevant provisions in the Quality of Care Principles (in particular s 15F(2)(e)), we impose the following condition upon SZH's appointed guardian when utilising the authority to authorise the use of physical restraint as outlined: 1. The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if: 1. SZH is regularly monitored for signs of distress or harm; and 2. the use of the restraint is regularly monitored and reviewed.
We note that our conclusion as to the conditions to be placed on the order concerning SZH may not necessarily be adopted in other matters. Each case will be determined by the Tribunal on the basis of the individual circumstances of the person and all other relevant considerations.
In addition, these reasons should not be read as suggesting that the development of a positive behaviour support plan for SZH more generally would not be in his interests and in fact, to the contrary. From 1 December 2020, the facility in which SZH lives will become registered with the NDIS Quality and Safeguards Commission and will be required to meet the obligations of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and associated rules, including behaviour support (https://www.ndiscommission.gov.au/providers/participants-residential-aged-care?_sm_byp=iVVQbNKn7rLbMVFP). The development of a behaviour support plan for SZH may well become an issue addressed under this new regulatory regime. This new regime may also have a bearing on how the restraint utilised in relation to SZH is properly described given the differences in the definitions used in the Quality of Care Principles and the NDIS (Restrictive Practices and behaviour Support) Rules 2018 (Cth) (see, for example, the definition of "environment restraint" as one that "restrict[s] a person's free access to all parts of their environment, including items or activities". See also VZM (at [54]-[57]).

[29]

Tribunal Directions

On 10 June 2020, a single member of the Tribunal directed the parties to provide written submissions about the following matters: "3 By 1 July 2020, the applicant is to give to the Tribunal, each of the other parties and the separate representative the following information: … 3.2 Coded keypads (a) How coded keypads are used in relation to [SZH], for example, are they present to restrict [SZH]'s free movement in and out of a particular area or are they used only on external doors/gates (b) The reasons coded keypads are necessary including a description of [SZH]'s behaviours that may require the use of coded keypads (c) Alternatives to the use of a coded keypad (if any) (d) Any behaviour support plan prepared in relation to [SZH] in relation to the use of coded keypads … 4 By 22 July 2020 the applicant and the Public Guardian are to give to the Tribunal and each other: (a) Submissions as to whether or not the use of any major medication/s, coded keypads and bed positioning in relation to [SZH] constitute chemical or physical restraint that requires the appointment of a guardian to give or withhold consent to the restraint (b) How the Quality of Care Amendment (Minimising the use of Restraints) Principles 2019 and the Aged Care Quality Standards set out in Schedule 2 of the Quality of Care Principles 2014 impact on whether or not the Tribunal should exercise its discretion to make a guardianship order under the Guardianship Act 1987." When the hearing was adjourned on 17 August 2020, we made the following directions: 1 The date for listing the hearing by telephone is to be confirmed by the Registrar. 2 By 31 August 2020 the Public Guardian is to give to the Tribunal, the applicant and the separate representative written submissions in response to the written submissions filed by the separate representative on 14 August 2020 as to the issue of whether or not the circumstances in which [SZH] resides in a locked aged care facility amounts to unlawful detention and/or a restrictive practice/restraint that requires the appointment of a guardian to give or withhold consent to the use of the restrictive practice/restraint. 3 By 7 September 2020 the applicant and the separate representative are to give to the Tribunal and the Public Guardian any written submissions in reply.

[30]

Written submissions of the separate representative

The relevant parts of the written submissions of the separate representative dated 14 August 2020 are as follows: "Focus of the submissions 1. The focus of these submissions is the following: (a) Whether the use of: (i) major medications (ii) a coded keypad; or (iii) bed positioning in an aged care facility amounts to a restrictive practice; and (b) How the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 and the Aged Care Quality Standards in Schedule 2 of the Quality of Care Principles 2014 impact on whether or not a guardianship order should be made by the Tribunal. What is "detention"? 2. In the Tampa asylum seeker cases, the Full Court of the Federal Court determined that asylum seekers held on a ship were detained, stating the test was "whether the restraint imposed is one that is not shared by the public generally" and that custody and control are the required elements giving rise to an unlawful restraint on the freedom of movement of the person (Full Court of the Federal Court in Ruddock v Vardarlis [2001] FCA 1297 at [86] and [69] cited in Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) [108]-[111]). 3. A relevant case in relation to the care of people with a disability is the case of Joanne Darcy, a woman who lived a large residential centre, Kanangra. Ms Darcy had behavioural issues and the Public Guardian as her guardian. The Public Guardian expressed the view that it did not want Ms Darcy to live at Kanangra but no alternative accommodation could not (sic) be found. In the Court of Appeal decision of Darcy (BHT Diane Aldridge) v State of New South Wales [2011] NSWCA 413, Ms Darcy by her tutor brought an action for false imprisonment. In that judgment, Justice Whealy articulated the relevant questions to be: Whether Ms Darcy was detained If she was detained, was it lawful 4. Ms Darcy made trips outside Kanangra, including trips to visit her mother by train. However, she could only leave Kanangra with permission and was obliged to return ([150]-[151]. His Honour concluded: "I have come to the conclusion that the facts in the present matter require a finding the Ms Darcy was detained, in the sense that this expression is used in the tort of false imprisonment. It is clear that Ms Darcy could not leave Kanangra without permission and, whenever permission was given, she was obliged to return to the institution of her sojourn. She was compelled to remain there and to return there, even though the compulsion was of the mildest kind." 5. The outcome of Ms Darcy's case turned on the facts. The Court found that because the Public Guardian accepted or permitted the continuation of Ms Darcy's detention in the absence of any other accommodation option for her and thereby provided lawful justification for her continued detention. Is the use of a locked keypad "detention"? 6. The Full Court of the Supreme Court of South Australia in the decision of The Public Advocate v C, B [2019] SASCFC 58 considered a fact situation where a man, BC, with dementia was residing in a Memory Support Unit within an aged care facility. The case was an appeal by the Public Advocate against declarations the trial judge that BC was unlawfully detained at the aged care facility and that a writ of habeas corpus should issue. 7. The facts were that the Memory Support Unit was locked but that the general area of the nursing home was locked overnight. It was also the case that BC was only permitted to leave the unit with staff, a volunteer or family members or friends and not unaccompanied. Chief Justice Kourakis agreed with the primary judge that BC's liberty was unlawfully curtailed (at [64]) and cited the primary judge's observations that: "the conditions under which the plaintiff resides at the Facility involve a restriction on his freedom of movement in relation to leaving the unit and the Facility unaccompanied. There is a locked door to the unit which can only be opened by entering a code on a keypad or swiping a card over an electronic device. These measures are intended to prevent the residents in the unit from leaving without permission and supervision." 8. At [67] the Court cited with approval the UK decision of Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, where the Court of Appeal held that is would still constitute detention even if the person detained may not be aware that he or she was being detained and would be prevented from leaving if he or she attempted to do so. According to Lord Atkin a person can be detained while asleep, drunk, unconscious and while a "lunatic". The example given in Meering is a person in a room and the door has been locked without his or her knowledge such that he or she cannot leave. Lord Atkin stated in that case that it would be the same situation if it is not a lock but guards, warders or police prevent a person from leaving even if the doors were not locked. 9. As the House of Lords stated in the decision of Bournewood (House of Lords R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1988] 3 All ER 289, referring to the Court of Appeal decision in the same case): "…a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving." 10. Kourakis CJ at [72] in The Public Advocate v C, B found that BC was detained in the locked ward because he did not know the code and did not have an access card. When he was accompanied out of the facility he was required to return to the facility and so he remained in detention. 11. The Court concluded that without a detention or special powers order under s32 of the relevant South Australian legislation, empowering the guardian to authorise detention, the detention was unlawful. Conclusions as to coded keypads 12. In accordance with the principles stated in the cases above, it is submitted that where a person resides in an aged care facility is: Prevented from leaving the facility by virtue of a coded keypad - either because they do not know the code or if they can access the code they cannot use it by virtue of their cognitive disability they are detained. This is the case even if they are unaware that they are detained and are not actively seeking to leave the locked unit or facility if he or she would be prevented from doing so if he or she had attempted to leave (Refer to the summary of The Public Advocate v C, B [2019] SASCFC 58 in the administrative review case of Re: EUY [2019] SACAT 51 (23 September 2019) at [80]. Note that this may be a different approach than what has previously been adopted by the Guardianship Division of NCAT where the Tribunal encouraged guardianship applications only where the subject person was "actively seeking to leave" the facility. Refer also to the decision of KZE [2018] NSWCATGD 40 where locks used for a therapeutic or safety purposes). The cases also support a finding that where a person is not permitted to leave a facility other than under supervision and expected to return and remain in the facility that person remains detained (See the obiter comments of the Tribunal in Re: EUY at [94]). The detention is unlawful unless authorized by a guardian with specific powers. 13. A key element in the cases is the inability of the person to leave the facility without permission and that occasional grants of conditional liberty to leave the unit or the facility did not preclude the finding that the person was detained during the periods in the locked ward (Refer to the summary of The Public Advocate v C, B [2019] SASCFC 58 in the administrative review case of Re: EUY [2019] SACAT 51 (23 September 2019) at [78]). 14. It is not necessary for the person to be able to physically leave the facility (Re: EUY at [82]). 15. The facts of EUY are relevant as there are similarities with the facts of some of the matters currently before the Tribunal. In that case, EUY was not permitted to leave the facility unaccompanied. The extent of her confusion was that she was unable to leave even if she was given the code for the keypad. She had not attempted to leave and was unlikely to understand that she was not allowed to leave and would be brought back if she tried to leave (Re: EUY at [88]). 16. Another case is that of QFO, an internal review case before SACAT. In that case no distinction was drawn between residence in a locked memory support unit or the unlocked general area of a nursing home or distinguish cases where the person had not made any attempts to leave the facility, despite being unhappy about living there. The key issue was whether QFO could not leave the facility unaccompanied and was required to return to the facility (Re QFO [2019] SACAT 43). 17. It is also noted that the justification of necessity (The justification at common law based on necessity contemplates an imminent danger of injury to the person or others: refer to High Court judgment of Watson v Marshall (1971) 124 CLR 621) cannot be relied on for routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues. … The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 and the Aged Care Quality Standards in Schedule 2 of the Quality of Care Principles 2014 20. The above amendment to the Quality of Care Principles commenced 1 July 2019 with further amendment by the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019, which came into force 29 November 2019. These Principles may be the subject of future review and change (O'Neill, N. and Peisah, C. Capacity and the Law (2019 edition) at 7.5.7.2.2) 21. These Principles only refer to physical and chemical restraints and for some time the drafting of was unclear as to the need to obtain consent to chemical restraint. This appears to have been somewhat clarified with the addition of Note 2 to cl. 15G(1). 22. However, it is submitted that it would be appropriate to follow the decision of the Tribunal in HZC in finding that administration of a chemical restrain falls outside the definition of medical treatment in s.33(1)(a) of the Guardianship Act 1987 and would therefore require to appointment of a guardian with chemical restraint as a restrictive practice function (In accordance with the reasoning of the Tribunal in KBU). 23. In HZC the Tribunal recognised that the NDIS legislation and Rules is not binging on NCAT. Similarly, the aged care legislation and in particular the Quality of Care Principles are not binding. It is a separate question for the Guardianship Division as to whether the Tribunal believes the statutory requirements for the making of a guardianship order ass contained in the Guardianship Act 1987 are in fact made out. 24. Guardians can authorize the use of restraints (Refer to s.21(1)(b) of the Guardianship Act which explains the potential breadth of the functions of a plenary guardian, which would extend to all the functions that a guardian has "at law or in equity."). Does a guardian need to be appointed to authorize the use of restraints? 25. Interestingly, VCAT has taken the view that an accommodation function in a guardianship order gives the guardian power to decide that a person should live in a locked facility which the person may only leave with supervision (Refer to NLA (Guardianship) [2015] VCAT 1104 (23 July 2015)). 26. However, in NSW the approach taken is that the authorisation of a guardian is required to the restrictive practice itself rather than the use of the authorise others function as sufficient to authorize the lawfulness of detention."

[31]

Written Submissions filed on behalf of the Public Guardian

The written submissions filed on behalf of the Public Guardian dated 15 September 2020 are as follows: "Matters raised by the Separate Representative 1. In submissions dated 14 August 2020, the Separate Representative has raised two issues for the consideration of the Tribunal. 2. The first issue is whether three practices adopted by aged care facilities in relation to one or more of the applicants in these proceedings amount to "restrictive practices". That is a term of common usage but also of legal definition in the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The practices are described by the Separate Representative as "major medications", "coded keypads" and "bed positioning". 3. The second issue is whether the Quality of Care Principles 2014 (Cth) (Quality of Care Principles), enacted under the Aged Care Act 1997 Cth) (Aged Care Act), have any impact on the NSW Civil and Administrative Tribunal's (the Tribunal) decisions. 4. The only questions before the Tribunal in respect of these proceedings is whether guardianship orders should be made under the Guardianship Act 1997 (NSW) (Guardianship Act), and if so what the scope of those orders should be. The Public Guardian's position is that neither of the issues raised by the Separate Representative are relevant to those questions. 5. As for the second issue, the Quality of Care Principles do not even apply to some of the aged care facilities, which are not "approved providers" within the meaning of the Aged Care Quality and Safety Commission Act 2018 (Cth) (Aged Care Commission Act). And for those aged care facilities to which the Principles do apply, the requirements of the Principles are a matter simply for those facilities, which are bound by them whether or not the Tribunal makes a guardianship order of any kind. The compliance of these facilities with these requirements is not a question before the Tribunal now. 6. As for the first issue, it is perfectly orthodox for the Tribunal to consider the possibility that an appointed guardian should have the power to consent to a particular practice, such as medication or bed positioning, on behalf of an applicant. But it is neither necessary nor appropriate for the Tribunal, in order to do so, to consider whether the practice is a "restrictive practice" within the legal meaning of Commonwealth law. The simple fact is that the Commonwealth law of "restrictive practices" does not apply to the aged care facilities, none of which are "NDIS providers" within the meaning of the NDIS Act. For that reason alone, the submissions of the Separate Representative are a distraction from the central questions in the proceedings. It should be said that the Separate Representative's approach is perfectly understandable, owing to certain remarks of the Tribunal in HZC [2019] NSWCATGD 8. In the Public Guardian's view, however, the Commonwealth law has no application to these proceedings or to the decision to be made by the Tribunal on an application for a guardianship order. The irrelevance of the Commonwealth law on "restrictive practices" 7. The law on what a "restrictive practice" is, and what the consequences are of a "restrictive practice" happening, is Commonwealth law. The term is defined in s 9 of the NDIS Act as "any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability". 8. The term "restrictive practice" is not defined under the Guardianship Act and has no corresponding legal meaning in other New South Wales statutes. It is not a freestanding legal concept: the fact that a Commonwealth law defines it in a particular way does not mean that that definition carries any further. 9. There is only a need to consider this Commonwealth law, then, if the aged care facilities are bound by provisions of the NDIS Act. That is to say, the need arises only if the facilities are "NDIS providers" within the meaning of that Act. 10. The term "NDIS provider" is defined in s 9 of the NDIS Act: NDIS provider means: (a) a person (other than the Agency) who receives: (i) funding under the arrangements set out in Chapter 2; or (ii) NDIS amounts (other than as a participant); or (b) a person or entity: (i) who provides supports or services to people with disability other than under the National Disability Insurance Scheme; and (ii) who is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph. 11. None of the aged care facilities satisfy either limb of this definition. None of them receive funding under Ch 2 of the NDIS Act or NDIS amounts, and none of them are prescribed under the rules. For completeness, the relevant rules are contained in the National Disability Insurance Scheme (NDIS Provider) Rule 2018 (Cth). Clause 5 of this Rule says: For the purposes of the Act, NDIS provider is prescribed to include a person or entity who is providing supports or services to older people with disability who are receiving continuity of support under the Commonwealth Continuity of Support Programme relating to Specialist Disability Services for Older People. 12. None of the aged care facilities are receiving continuity of support under the Commonwealth programme mentioned in the clause. 13. The NDIS Act provides that certain consequences will follow if an "NDIS provider" engages in a "restrictive practice". One of these consequences is that a "reportable incident" will occur (see s 73Z(4)(f)), an exception being that the practice was in accordance with a State authorisation. Another consequence is that the NDIS provider may breach a condition of its registration. By s 73H, the Act allows the NDIS rules to determine what such conditions are. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) do this work. Essentially, cl 8 of this rule makes it a condition of an NDIS provider's registration not to use a "restricted practice" if the practice is prohibited by State law. Clause 9 makes it a condition of registration not to use a "regulated restrictive practice" (a term defined in cl 6) if the State has an "authorisation process" in relation to the practice. And cl 10 makes it a condition of registration not to use a regulated restrictive practice inconsistently with a "behaviour support plan". In these different ways, the rules make the occurrence of a "restrictive practice" a breach of conditions of registration, with such a breach exposing an NDIS provider to a civil penalty. 14. The point is that the rules only apply where the restrictive practice or regulated restrictive practice is engaged in by an NDIS provider. Because these proceedings do not involve an NDIS provider, there is no need to make reference to the NDIS Act and the scheme of regulation which it lays down in respect of "restrictive practices". That scheme of regulation has no freestanding operation or force in New South Wales. It only applies where a provider of care is an NDIS provider. It would be wrong to treat the scheme or the legal concepts on which it relies has having any independent operation in New South Wales. 15. In HZC [2019] NSWCATGD 8 at [44]-[45], the Tribunal said this: This Commonwealth legislation [i.e. the NDIS Act and the rules made under it], and the definitions it contains, is not binding on the Tribunal in its deliberations when considering whether it should appoint a guardian with the function of making decisions about restrictive practices. Notwithstanding that, it would seem to us that there are sound reasons why it would be in the best interests of people with whom restrictive practices are being used in NSW, for there to be some consistency in the way the definitions are applied throughout the quality and safeguards arena and within the Tribunal. 16. The Public Guardian agrees with the first paragraph but submits that it would be an error of law to apply the Commonwealth law to decisions to be made by the Tribunal in the context of a guardianship application. 17. It is understandable why the Tribunal might wish to refer to the Commonwealth definition of a "restrictive practice" in s 9 of the NDIS Act, or perhaps even the definition of a "regulated restrictive practice" in cl 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth): so that it can get a sense of the types of practices that are restrictive to people's liberty or are possibly unlawful under New South Wales law. But a "sense" is all that the Tribunal can get from the Commonwealth law. Its task is not to apply a legal definition of "restrictive practice". (Of course, this term is a matter of common usage, too; it is a term that has been used for years by members of the disability and aged care sectors.) The fact remains that the term is of no legal consequence under the Guardianship Act. 18. When the Tribunal comes to make its decisions under the Guardianship Act, it has to consider only what the appropriate orders are to make. The Act does not require it to consider the meaning of a "restrictive practice" to properly consider this question. 19. The underlying logic of the Separate Representative's submissions is that the Tribunal should be minded to ensuring that the appointed guardians have power to consent on behalf of the applicants to practices that would otherwise be unlawful. That is a fair and proper concern. But the lawfulness of the practices in New South Wales has nothing to do with the Commonwealth law of "restrictive practices" where a facility is not subject to the NDIS. It is to do only with the torts of battery, assault and imprisonment (and the like), and with other legislation that might outrightly prohibit the practices. If the Tribunal is minded to ensuring that the appointed guardian has power to consent to the practices, it need not have any regard to the NDIS Act or the rules made under it to assess the legal nature of these practices. 20. Of course, consent is just one way in which the practices raised by these proceedings could be made lawful (that is, if they are otherwise unlawful). Another way is that the practices have received proper legal authorisation. Where that authorisation comes from will depend on the practice and the legislative schemes applying to it. There is no need to go into that detail at the present moment. 21. The Public Guardian does not therefore wish to put any submissions on whether certain practices raised by these proceedings are "restrictive practices" within the meaning of Commonwealth law. 22. To conclude its submissions on this matter, the Public Guardian notes the South Australian decision of The Public Advocate v C, B [2019] SASC 58, about which the Tribunal has asked for assistance. That case merely confirms and adds nothing to the analysis provided in these submissions. The case makes the very simple point that if a guardianship order does not authorise a guardian to consent on behalf of a person to a practice that interferes with the person's liberty (whether or not the practice amounts to a "restrictive practice" under Commonwealth statute law), then the maker of the practice will be exposed to civil liability for torts such as false imprisonment or battery. This proposition does not bear upon the decisions that the Tribunal has to make in these proceedings. The proposition bears only upon the consequences that may follow from the decision that the Tribunal makes, if for example an appointed guardian exceeds the scope of their authority under a guardianship order. The irrelevance of the Quality of Care Principles 23. The Separate Representative has also suggested that the Quality of Care Principles inform the Tribunal's decision. They do not. The most fundamental reason why is that the Principles set out the obligations of care providers. They do not set out the obligations of a tribunal in deciding whether to appoint a guardian for a person who receives care from such a provider. The obligations of care providers under the Principles apply whether or not the Tribunal makes guardianship orders in these proceedings. 24. The question of whether one or more of the aged care facilities in these proceedings has breached or fallen foul of the Principles is not a question currently before the Tribunal. The only question before the Tribunal is whether a guardianship order should be made in respect of each applicant. The questions are distinct. They have no logical overlap. To be clear: if an aged care facility may be falling foul of the Principles, the immediate legal questions will be whether that really is the case, and what should be done about that, in terms of the remedies or penalties available. The making of guardianship orders under the Guardianship Act has no relevance to these questions. 25. A secondary reason why the Quality of Care Principles are irrelevant concerns only four out the six aged care providers. The reason is that these four providers are not "approved providers" within the meaning of the Aged Care Commission Act. (The definition given to the term in this Act is used also in the Aged Care Act, under which the Principles were enacted.) By s 63D of this Act, a person can become an "approved provider" if it submits an application to the Aged Care Quality and Safety Commissioner and has its application granted. By s 63F of the Act, a person can be taken to be approved provider if a State requests the Commissioner that this be done. The Public Guardian understands that only two of the aged care facilities satisfy the meaning of an "approved provider". 26. The Quality of Care Principles are made under s 96-1 of the Aged Care Act. Item 18 of s 96-1 of the Act allows the Minister to make "Quality of Care Principles" that provide for matters required or permitted by or incidental to Pt 4.1 of the Act. Framed at a general level, Pt 4.1 concerns the responsibilities of "approved providers" in relation to their providing of aged care. It does not concern the responsibilities of any other providers. For example, s 54-1(1)(a) and (d) (within this Part) says that two of the responsibilities of "approved providers" are to provide care and services as specified in the Quality of Care Principles and to comply with the Aged Care Quality Standards made under s 54-2 of the Act. 27. As for the Aged Care Quality Standards, they appear in Sched 2 to the Principles. It is true that they are not framed by reference to "approved providers". They are framed by reference to "consumers" and "organisations". They apply generally to consumers and organisations involved "residential care", "home care" and "flexible care in the form of short-term restorative care" (see cl 18; see also the definitions in ss 41-3, 45-3 and 49-3 of the Aged Care Act). But all the Standards do is stipulate the general outcomes and requirements that must be reflected in the provision of aged care. They are just standards. Within Sched 2 to the Principles, the standards are not imposed on any person in particular. No one is made liable for anything in connection with the standards. That work is done elsewhere in the Principles. And relevantly, that work is done only in relation to "approved providers". That is to say, the Standards are made applicable by other provisions of the Principles to "approved providers". 28. For example, in cll 15F and 15G, the Principles say that "approved providers" cannot use "physical restraint" unless the use of the restraint is approved by a health practitioner who has assessed the "consumer" of the provider in the required way; and once such restraint is used, the provider must document certain matters and make sure the restraint is used for the minimum time necessary. The Principles also say that "approved providers" cannot use "chemical restraint" unless a medical practitioner or nurse practitioner has assessed the consumer of the provider in the required way, and has prescribed the relevant medication; and once such restraint is used, the provider must inform the consumer's representative about the use of the restraint, document certain matters, and regularly monitor the consumer's condition. 29. These obligations will apply only to two of the aged care facilities involved in these proceedings. As for the other one, which is not an approved provider the obligations have limited application. 30. But, to return to the basic point: what is done by provisions such as cll 15F and 15G is the imposition of obligations on care providers. They do not require or ask the Tribunal to do anything. The obligations they provide for will be unaffected by whatever orders the Tribunal makes in these proceedings. Conclusion 31. In the Public Guardian's view, the Separate Representative's submissions overcomplicate and distract from the ultimate issue in these proceedings. The only issue is what order, if any, the Tribunal should make under the Guardianship Act. 32. This question requires an assessment of the following: (a) whether the person is "disabled" within the meaning of ss.3(2)(a) (d) of the Guardianship Act; (b) whether, by virtue of such a disability, the person is "restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation"; and (c) whether, despite any need he or she has for "supervision or social habilitation" (s 3(2)): (i) he or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way (ss 4(a)-(c), 4(f)). (ii) he or she is in need of protection from neglect, abuse or exploitation (ss 4(a), 4(g). 33. Ultimately, what is done or not done, must be measured against whether it is in the interests, and for the benefit, of the particular person in need of protection and the Tribunal's obligation to minimise interference in the persons freedoms of decision and action: , s 4(a) and (b) ; Guardianship Act s. 4(a) and (b); Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48] (P v NSW Trustee and Guardian [2015] NSWSC 579). 34. As the Tribunal is aware, the criteria relevant to determining whether a guardianship order should be made are spelt out by ss 14(1) and 16(1)-(2) of the Act. 35. The Tribunal has a discretion as to whether or not to make a guardianship order, even where it has concluded that the subject person is "a person who has a disability" for the purposes of the Guardianship Act. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss. 4 and 14(2) of that Act, which the Tribunal must consider in deciding whether it should make an order. including whether their need for appropriate decision-making can be achieved in a less formal way (EQK [2016] NSWCATGD 29). The question should be approached on a case-by-case basis with regard to these legal criteria and the factual submissions put to it by the parties. 36. It is perfectly orthodox to anticipate that - as per the underlying logic of the Separate Representative's submissions - guardianship orders could authorise the guardian to consent on behalf of a person to various practices. But that anticipation need not be done with any reference to the legal concept of a "restrictive practice" as it is defined in the NDIS Act and the rules made under it. Furthermore, it need not be done with any notice of what obligations are owed by two of the three aged care providers under the Quality of Care Principles."

[32]

Written Submissions of the separate representative in reply

The written submissions of the separate representative filed in reply and dated 23 September 2020 are as follows: "Previous submissions of the separate representative 1. To summarise, the previous written submissions of the separate representative, dated 14 August 2020, were: Coded keypads (a) A coded keypad in an aged care facility will amount to detention when it prevents a person from leaving the facility either because they do not know the code or cannot use the keypad by virtue of their cognitive disability. (b) This will be the case even if the person is unaware that they are detained and they are not actively seeking to leave. (c) Where a person is not permitted to leave the facility other than under supervision and expected to return and remain in the facility the person remains detained. (d) Where a person cannot give their own consent to the detention and where there is no other lawful justification or authorisation, the detention will be unlawful unless authorised by a guardian with specific powers. (e) The justification of necessity cannot be relied on for the routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues. … Response to the further submissions of the Public Guardian 2. The Public Guardian filed some preliminary submissions (in matters 2018/226238 and 2009/474871) on 6 May 2020. Further detailed submissions in all six matters (the relevant file numbers are identified at the top of page 1 above) were filed on 16 September 2020. It is these further submissions to which the separate representative responds. 3. The separate representative agrees with the submission made at [4] of the Public Guardian's submissions to the effect that the only question before the Tribunal is whether or not a guardianship order should be made. The Quality of Care Principles impose certain obligations and reporting requirements on aged care facilities. They can be viewed as something that might give rise to an Application for a guardianship order but have no direct relevance to the considerations for the Tribunal in s.14(2) of the Guardianship Act 1987, other than perhaps the "practicability of serves being provided…without the need for [the order]". 4. However, it is submitted that there is a more fundamental question for determination by the Tribunal in exercising its guardianship jurisdiction. That is, if the Tribunal accepts that a person unable to leave an aged care facility because of a coded keypad is in fact detained and that detention is unlawful whether this of itself gives rise to a need for a guardianship order. 5. Put another way, it is submitted that it is incumbent on the Tribunal when exercising functions under the Guardianship Act 1987 to have regard to the s.4 principles. Applying those principles, it is submitted that where the freedom of action of subject persons (s.4(b) of the Guardianship Act 1987) has been restricted by virtue of an unlawful detention, it would be in the person's welfare and interests that a guardian be appointed to decide whether or not consent should be given and thus make what was unlawful lawful. Without such an appointment being made there will be insufficient scrutiny as to whether or not the detention of the person should be authorised, for example for their protection and safety. The appointment of a guardian to assess whether consent should be given would amount to less restriction of the freedom of decision and action of the person because it will bring with it an opportunity for the guardian to refuse to consent to the detention. 6. It is also submitted that unlawful detention is itself a form of neglect, abuse and exploitation (s.4(g) of the Guardianship Act 1987). Indeed, it is arguable that it is a violation of a person's human rights. For example, Article 14 of the Convention on the Rights of Persons with Disabilities which states that persons with disabilities should not be deprived of their liberty unlawfully. It could also be actionable under various intentional torts, such as false imprisonment. 7. It is the considered submission of the separate representative that the Tribunal should align its understanding of physical or environmental restraint with the common law understanding of detention rather than some other concept about whether a person is actively seeking to leave, which has no basis in law. 8. Indeed the Tribunal stated in the recent decision of VZM [2020] NSWCATGD 25 (3 August 2020) at [47]: "…it has been long recognised in the jurisprudence developed by the Tribunal that the use of restrictive practices for a person who is unable to provide their own informed consent potentially leads to some of the most serious infringement of rights to personal autonomy and freedom of movement. This jurisprudence has also developed to ensure that practices used in relation to a person that would otherwise be unlawful under the common law (such as assault, false imprisonment and detinue) could be utilised in certain specified circumstances if consented to be a guardian with the authority to do so." 9. It is submitted that should the Tribunal take the view that keeping a person who cannot give their own consent in a facility that they cannot leave because they cannot operate a coded keypad is otherwise unlawful under the common law, it is argued that in order for these practices to be authorised, the appointment of a guardian is required. 10. As the Tribunal stated in VZM at [56]: "…for someone who is unable to provide their own informed consent restrictive practices may only be lawfully used in NSW if a guardian is appointed by [NCAT] with the appropriate authority. This is because the guardian's authority makes lawful that which would otherwise be unlawful under the common law…. The appointment also ensures that a person's rights are protected." 11. It is submitted that the use of a coded keypad in circumstances where a resident of an aged care facility cannot consent requires the appointment of a guardian. As stated in VZM, guardianship orders are regularly reviewed [61]. As the Tribunal pointed out in VZM compliance with the requirements of the Quality of Care Principles may not result in any lawful consent being given to the use of restraints because the "consumer's representative" may not be the person's appointed guardian with appropriate authority: [60(2)]. 12. It is for the above reasons that the separate representative submits that guardianship orders should be made." 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

Legislation Cited (14)

NDIS (Restrictive Practices and Behaviour Support) Rules 2018(Cth)

(Civil and Administrative Tribunal Act 2013(NSW)

[1]). Under the Guardianship and Administration Act 1993(SA)

NDIS (Restrictive Practices and behaviour Support) Rules 2018(Cth)

Guardianship Act 1997(NSW)

National Disability Insurance Scheme (NDIS Provider) Rule 2018(Cth)

Mental Health Act 2007(NSW)

National Disability Insurance Scheme Act 2013(Cth)

Aged Care Quality and Safety Commission Act 2018(Cth)

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018(Cth)

Aged Care Act 1997(Cth)

Civil and Administrative Tribunal Act 2013(NSW)

Guardianship Act 1987(NSW)

Guardianship and Administration Act 1993(SA)

Cases Cited (34)

r Immigration and Border Protection [2015] HCA 1 Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413 The Public Advocate v C, B [2019] SASCFC 58 Elleray v Rail Corporation NSW [2017] NSWCA 23 FI v Public Guardian [2008] NSWADT 263 HKO [2016] NSWCATGD 14 Hunter and New England Area Health Services v A [2009] NSWSC 761 HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 Lewis v Australian Capital Territory [2020] HCA 26 MAQ [2016] NSWCATGD 70 McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289 Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 4 Murray v Ministry of Defence [1988] 2 All ER 521 (1 W.L.R. 692) NIQ [2014] NSWCATGD 28 P v NSW Trustee and Guardian [2015] NSWSC 579 Re: EUY [2019] SACAT 51 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Riley [2003] NSWCA 208 State of New South Wales v TD [2013] NSWCA 32 State of NSW v Le [2017] NSWCA 290 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 VZM [2020] NSWCATGD 25 Watson v Marshall (1971) 124 CLR 621 Texts Cited: "Regulation of physical and chemical restraint" (issue No. 2019-8.1 Issue Date: 11 December 2019) Category: Principal judgment Parties: 007: Guardianship Application

[2019] SASCFC 58

[2007] VSCA 289

[2019] SACAT 51

Cited By (8)

FNX [2021] NSWCATGD 4

IF v IG

JFL [2020] NSWCATGD 32

KXE [2024] NSWCATGD 1

NBT [2021] NSWCATGD 2

NZX [2021] NSWCATGD 16

SHG [2024] NSWCATGD 2