TZT [2020] NSWCATGD 67

The hearing

1. This hearing was conducted by telephone as a consequence of the NSW State and the Federal government orders in relation to movement and gathering during the COVID-19 pandemic.
2. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did we have to decide?

1. The questions to be considered were :

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

Is TZT someone for whom we could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": 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 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).
2. When the previous order was made, TZT was found to have an intellectual disability and was unable to make important life decisions.
3. There is no new evidence before us in relation to this issue. Relying upon the previous findings of the Tribunal, we are satisfied he continues to have a disability which prevents him making important life decisions. He is at least partially incapable of managing his person. He is a person for whom we could make a further guardianship order.

Should we make a guardianship order and what order should be made?

1. We must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising the discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However we must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task we may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. Ms Z, a Senior Guardian, provided a written report supported by Ms Y. Ms X, the Duty Guardian, participated in the hearing. In summary it was recommended there continued to be a need for a guardian to be appointed to make decisions about health care, medical and dental consents, services and restrictive practices in the form of chemical restraint.
4. It was reported TZT has complex physical and mental health. He is prescribed Clozapine to treat his mental illness and receives regular monitoring through the Clozapine Clinic. He has epilepsy. He is at risk of choking and has a special diet.
5. He is a participant in the NDIS. He engages in a range of social activities. There has been a need to seek an unscheduled review of his NDIS Plan. There are ongoing decisions pending to be made about his support services and health care. There will continue to be a need to make decisions about these matters. TZT is prescribed major medications. He has no "person responsible" who is able to provide consent to treatment.
6. TZT has a BSP dated May 2020 developed by Ms V, Psychologist, from a human services consultancy. The BSP includes the use of restrictive practices. We were provided with a copy of the BSP. The BSP identified behaviours which are identified to be of concern at times. This includes agitation. It was reported he has a history of self-injurious behaviours, but was not currently displaying these. There are strategies in place to manage this behaviour. Restrictive practices in the form of chemical restraint, is one of the strategies used to manage the behaviours.
7. He is prescribed Clonazepam and Quetiapine PRN. The medications are used to manage the behaviours and are in addition to the medications prescribed to treat his diagnosed conditions.
8. We considered whether to make a guardianship order in the circumstances here and had regard to the evidence in the context of the criteria above. TZT was unable to express any views due to the nature of his disability. He has no spouse or carer.
9. There were no cultural issues identified. There was no evidence the appointment of a guardian was necessary to preserve his family relationships, or would adversely affect those relationships. It is reported he has very limited contact with family members.
10. We considered whether the necessary services could be provided without an order. TZT has very complex physical and mental health and is prescribed major medications. He has no person responsible. He has no-one who is able to act as an NDIS Plan Nominee for the purposes of making decisions about support services. Additionally he has a BSP which includes restrictive practices.
11. In relation to the use of restrictive practices, the decision of this Tribunal in HZC [2019] NSWCATGD 8, usefully summarised the recent developments in relation to the use of restrictive practices in NSW, set out below. Since the advent of the NDIS, though, new Commonwealth legislation has been developed in the regulation of the support provided under the NDIS, particularly as it relates to the use of restrictive practices. The most significant change to the legislative arena brought about by the implementation of the NDIS is the commencement of the NDIS Quality and Safeguarding Framework which underpins the scheme. As noted in MZC [2018] NSWCATGD 34 at [29] to [34], under that framework, states and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behavioural support practitioners. Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practices as "any practice or intervention that has the effect of restricting the rights or freedom of movement of the person with disability". This is consistent with the common usage of the phrase by the Tribunal. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguarding Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices. Registered NDIS providers and behavioural support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the Rules), which commenced on 1 July 2018. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6): (a) seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted; (b) chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition; (c) mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes; (d) physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person; (e) environmental restraint, which restrict a person's free access to all parts of their environment, including items or activities.
12. It is proposed to use chemical restraint to manage behaviours which TZT exhibits, which have been identified to be of concern at certain times. While the restrictive practice will be used in the context of the BSP, as a restrictive practice the formal consent of a guardian is required for the reasons noted above.
13. We decided on the basis of all of this evidence, that we should make a guardianship order. The guardian was appointed to make decisions about health care, medical and dental consents and services for the reasons outlined above. The guardian was also appointed to make decisions about restrictive practices in the form of chemical restraint in the context of a comprehensive behaviour support plan as set out above.

Who should be appointed as guardian?

1. There was no private person seeking to be appointed as the guardian. We therefore appointed the Public Guardian.

How long should the order last?

1. There is a need to undertake staff training in relation to the BSP. Additionally there is a need for further assessment by his Psychiatrist about the nature of the chemical restraint and whether some of the medications are to treat a diagnosed condition. We made the guardianship order for 12 months.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2021