VZM [2020] NSWCATGD 25

Background

1. VZM is a 58-year-old woman of Polish descent who lives at an aged care facility in Suburban Sydney ("the Aged Care Facility"). LZM is her husband and the applicant in these proceedings. BYD is her sister.
2. In November 2002, VZM experienced a subarachnoid brain haemorrhage the result of which she is cognitively impaired, has quadriplegia and does not leave her bed. VZM requires high-level care, 24 hours a day.
3. On 11 June 2003 the Tribunal made a financial management order for VZM and appointed LZM as her private financial manager.
4. On 18 June 2020, LZM lodged an application with the Tribunal seeking to be appointed as his wife's guardian with the authority to consent to the use of bed rails as a restrictive practice.
5. LZM stated in the application as follows: [VZM] is quadriplegic with limited movements of her limbs. For many years, nursing home used bed rails to keep her in safety and comfort. [VZM] needs cushions to be put around her body when lying on her side. This was taken away 4 months ago when nursing home following Federal/State government policy removed bedrails in nursing homes! [VZM] now is not safe and she is not comfortable. With bedrails removed there is a high risk of her fall from bed. [VZM]'s sister [BYD] made contact with Age Care Control and Safety Commissioner and was advised that they don't have the power to take any remedial action.
6. LZM's application also went on to state that: With bedrails removed, she can fall from bed anytime with catastrophic consequences ie serious injury or death.
7. We understood from the written and oral evidence before us, which was not disputed by any of the participants in the hearing, that bed rails were used for VZM for many years up until January 2020 so that there was no risk that she would accidentally fall out of her bed and so that cushions could be used to support her when she was positioned on either side of her body.

The hearing

1. The following people participated in the hearing by telephone: LZM, BYD, Ms S (Manager Clinical Care, the Aged Care Facility) and Ms E (CEO, the Aged Care Facility).
2. VZM did not participate in the hearing. We were provided with a report dated 10 June 2020 from Dr N, VZM's treating doctor of 17 years, who confirmed the extent of VZM's disabilities and that VZM "cannot communicate and has no understanding in either English or Polish language, therefore incapable of making any decisions".
3. Consistent with the views of the participants in the hearing and the medical evidence before us as to the impairments VZM has experienced as a result of her brain injury, we were satisfied that VZM would be unable to take part in the hearing. Accordingly we proceeded without seeking to involve VZM in the hearing.

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

1. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Guardianship Act. 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: s 3(2) of the Guardianship Act.
2. Dr N's report dated 10 June 2020 confirmed that as a result of her brain injury in 2002, VZM is "completely bed-bound with very limited movement of her arms and pelvis but no movement of her legs", is "completely dependent" on others for all aspects of her activities of daily living and is "incapable of making any decisions".
3. LZM and BYD expressed views consistent with those of Dr N. They agreed that VZM has no capacity to make any decisions about her life and that she needs assistance with all aspects of her care. There was no disagreement with this evidence by the representatives of the Aged Care Facility.
4. Based on the evidence of the extent of her cognitive impairment, which we accept, we were satisfied that VZM is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help [her] function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
5. We were satisfied that VZM is a person for whom a guardianship order could be made.

Should the Tribunal make a guardianship order?

1. In deciding whether or not to make a guardianship order for VZM, we were required to consider the factors listed in s 14(2) of the Guardianship Act, relevantly the views (if any) of VZM and her spouse and carers, the importance of preserving VZM's existing family relationships and cultural and linguistic environment, and the practicability of services being provided to VZM without the need for the making of a guardianship order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the 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).
3. For the reasons previously outlined we were unable to ascertain VZM's views about these matters.
4. LZM's views were very clear. He wanted a guardianship order to be made so that bed rails could again be used by the nursing home to ensure VZM's safety and comfort. He understood from the information provided to him by the Aged Care Facility that this could only occur if a guardian was to be appointed for VZM.
5. BYD's views were at one with those of her brother-in-law.
6. LZM and BYD told us that bed rails had been used with VZM up until January 2020. They informed us that since then the Aged Care Facility did not allow their use to continue because of what was described by the Aged Care Facility as a new law prohibiting the use of bed rails without the appointment of a guardian to consent to their use.
7. According to LZM and BYD, without bed rails VZM was restricted to lying on her back as cushions were previously used to allow her to be positioned on either side of her body and these cushions were kept in place by the bed rails. Since the bed rails have not been able to be used, VZM's bed has been lowered to reduce possible injury if she were to accidentally fall out of her bed. According to her family, VZM has also been deprived of any view through the single window into the garden as she is now too low to see out. LZM also told the Tribunal that VZM experienced colder temperatures because her bed is now closer to the ground.
8. Relevant to our consideration of whether or not to make a guardianship order, we had regard to the importance of preserving VZM's existing family relationships and noted the clearly close and continuing family relationships between VZM, her husband and her sister. The evidence indicated that LZM and BYD have worked together for many years to ensure that VZM's needs are met and that she is cared for to the highest possible standard. We formed the view that whether or not a guardianship order is made for VZM, these close family relationships will endure. This factor did not therefore weigh in favour, or against, the making of a guardianship order.
9. In considering whether or not to make a guardianship order, we also had regard to the importance of preserving VZM's particular cultural and linguistic environment. This environment is provided not only by her family who share VZM's Polish heritage but also by the services provided by the Aged Care Facility that has a particular focus on the Polish-Australian community. VZM has lived at this aged care facility for many years and her family members spoke positively of the care that is provided for her. There was no suggestion in the evidence provided by the representatives of the Aged Care Facility that VZM's ongoing accommodation at this aged care facility was dependent on whether or not a guardianship order was made for her giving the guardian a restrictive practices function. The CEO of the Aged Care Facility, Ms E, noted that the use of bed rails for VZM would need to be reported on by the Aged Care Facility in order to meet the organisation's obligations under the Aged Care Act. Ms E indicated that if the outcome of this hearing was that a guardianship order was not made because the Tribunal formed the view that the use of bed rails for VZM was not a restrictive practice, then as long as the Aged Care Facility could make available a copy of the Tribunal's reasoning to the regulator, being the Aged Care Quality and Safety Commission, she felt that the issue of the organisation's compliance with regulatory obligations could be managed.
10. Given this evidence, we were satisfied that the particular cultural and linguistic environment provided to VZM by the Aged Care Facility would continue regardless of the outcome of this hearing. This factor did not therefore weigh in favour, or against, the making of a guardianship order.

Practicability of services being provided to VZM without the making of a guardianship order

1. The primary issue of contention in these proceedings was whether it was practicable for bed rails to be reinstituted for VZM without the making of a guardianship order.
2. The position of the Aged Care Facility was that it was not practicable for this to occur without the making of a guardianship order. Ms E, on behalf of the Aged Care Facility, explained that this was because the use of bed rails constitutes a restraint under the Aged Care Act and a restrictive practice under the Guardianship Act and that continued use required authorisation from a guardian with a function to consent to the use of this restrictive practice. This was Ms E's understanding of the law on the basis of advice and material she had received. Ms E made reference to the definition of "physical restraint" in new aged care regulations and that the Aged Care Facility is required to report on a quarterly basis to the Aged Care Quality and Safeguard Commission concerning the use of physical restraints. Ms E told us that if bed rails are reinstituted for VZM and their use comes within the definition of physical restraint and amounts to a restrictive practice, then unless a guardian is appointed to consent to their use, the Aged Care Facility will be in breach of its obligations under the Aged Care Act.
3. Ms E referred us to a number of documents to support her understanding that the use of bed rails constitutes a restrictive practice. These documents included the NCAT Restrictive Practices Factsheet ("the Factsheet") issued in November 2019 and which is publicly available on the NCAT website. In particular, Ms E cited a document referred to in the Factsheet, called "Decision-Making Tool: Supporting a Restraint Free Environment in Residential Aged Care" which is published online by the Australian Government Department of Health and Ageing. In that document, bed rails are specifically referred to as an example of a "physical restraint device".
4. Given the matters raised on behalf of the Aged Care Facility and the basis upon which it decided that bed rails cannot be used for VZM without the appointment of a guardian to consent to their use, we considered it appropriate to consider relatively recent developments in the federal sphere regarding the regulation of the use of restraints in residential aged care services and the interaction with the jurisdiction exercised by this Tribunal under the Guardianship Act. This includes consideration of the consent pathway provided for in the Principles that allows a "consumer representative" to consent to the use of a restraint and why the appointment of a guardian with appropriate authority may nevertheless be required. We will then turn to the issue of VZM's particular circumstances and whether or not it is practicable for bed rails to be used for her without a guardianship order needing to be made for her.

Regulation of the use of restraint in residential aged care services

1. On 1 July 2019, the Principles, made under s 96-1 of the Aged Care Act, were amended by the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) which introduced regulatory requirements in relation to the use of restraints by residential aged care providers. Following further amendment on 29 November 2019 by way of the Quality of Care Amendment (Reviewing Restraints Principles) Principles, Pt 4A of the Principles now specifies the obligations placed on every "approved provider" of residential aged care in relation to the use of "physical restraint" and "chemical restraint" in order to ensure those measures are used only as a "last resort": ss 15F and 15G of the Principles.
2. The terms "restraint", "physical restraint" and "chemical restraint" are defined in s 4 of the Principles as follows: restraint means any practice, device or action that interferes with a consumer's ability to make a decision or restricts a consumer's free movement. chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition. physical restraint means any restraint other than: (a) a chemical restraint; or (b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
3. The obligations placed on an approved provider in relation to the use of "physical restraint" are as follows: 15F Physical restraint to be used only as a last resort (1) An approved provider must not use a physical restraint in relation to a consumer unless, in relation to that use of the restraint: (a) an approved health practitioner who has day‑to‑day knowledge of the consumer has: (i) assessed the consumer as posing a risk of harm to the consumer or any other person, and as requiring the restraint; and (ii) documented the assessment, unless the use of the restraint is necessary in an emergency; and (b) alternatives to restraint have been used for the consumer to the extent possible; and (c) the alternatives to restraint that have been considered or used have been documented, unless the use of the restraint is necessary in an emergency; and (d) the restraint is the least restrictive form of restraint possible; and (e) the approved provider has the informed consent of the consumer or the consumer's representative to the use of the restraint, unless the use of the restraint is necessary in an emergency. (2) If an approved provider uses a physical restraint in relation to a consumer, the approved provider must: (a) if the restraint is used in an emergency - document the matters mentioned in subparagraph (1)(a)(ii) and paragraph (1)(c) as soon as practicable after the restraint starts to be used; and (b) if the restraint is used without the consent mentioned in paragraph (1)(e) - inform the consumer's representative as soon as practicable after the restraint starts to be used; and (c) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following: (i) the consumer's behaviours that are relevant to the need for the restraint; (ii) the alternatives to restraint that have been used (if any); (iii) the reasons the restraint is necessary; (iv) the care to be provided to the consumer in relation to the consumer's behaviour; and (d) use the restraint for the minimum time necessary; and (e) while the consumer is subject to the restraint: (i) regularly monitor the consumer for signs of distress or harm; and (ii) regularly monitor and review the necessity for the restraint.
4. The obligations placed on an approved provider in relation to the use of "chemical restraint" are as follows: 15G Chemical restraint to be used only as a last resort (1) An approved provider must not use a chemical restraint in relation to a consumer unless: (a) a medical practitioner or nurse practitioner has assessed the consumer as requiring the restraint and has prescribed the medication the use of which is, or is involved in, the restraint; and (b) the practitioner's decision to use the restraint has been recorded in the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2; and (c) the consumer's representative is informed before the restraint is used if it is practicable to do so. Note 1: Codes of appropriate professional practice for medical practitioners and nurse practitioners provide for the practitioners to obtain informed consent before prescribing medications. Those codes are approved under the Health Practitioner Regulation National Law and are: (a) for medical practitioners - Good medical practice: a code of conduct for doctors in Australia (which in 2019 could be viewed on the website of the Medical Board of Australia (https://www.medicalboard.gov.au)); and (b) for nurse practitioners - Code of conduct for nurses (which in 2019 could be viewed on the website of the Nursing and Midwifery Board of Australia (https://www.nursingmidwiferyboard.gov.au)). Note 2: State and Territory legislation deals with who can consent to the prescribing of medication for a consumer who cannot consent because of any physical or mental incapacity. (2) If an approved provider uses a chemical restraint in relation to a consumer, the approved provider must: (a) if the consumer's representative has not been informed of the use of the restraint - inform the consumer's representative as soon as practicable after the restraint starts to be used; and (b) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following: (i) the consumer's behaviours that are relevant to the need for the restraint; (ii) the alternatives to restraint that have been used (if any); (iii) the reasons the restraint is necessary (if known by the approved provider); (iv) the information (if any) provided to the practitioner that informed the decision to prescribe the medication; and (c) while the consumer is subject to the restraint - regularly monitor the consumer for signs of distress or harm and provide information to the practitioner regarding use of the restraint.
5. "Consumer" is relevantly defined in s 4A(1) of the Principles as follows: 4A Meaning of consumer (1) Consumer means a person to whom an approved provider provides, or is to provide, care through an aged care service.
6. The meaning of "representative" of a consumer is set out in s 5 of the Principles as follows: 5 Meaning of representative (1) Representative, of a consumer, means: (a) a person nominated by the consumer as a person to be told about matters affecting the consumer; or (b) a person: (i) who nominates themselves as a person to be told about matters affecting a consumer; and (ii) who the relevant organisation is satisfied has a connection with the consumer and is concerned for the safety, health and well‑being of the consumer. [Emphasis added] (2) Without limiting subparagraph (1)(b)(ii), a person has a connection with a consumer if: (a) the person is a partner, close relation or other relative of the consumer; or (b) the person holds an enduring power of attorney given by the consumer; or (c) the person has been appointed by a State or Territory guardianship board (however described) to deal with the consumer's affairs; or (d) the person represents the consumer in dealings with the organisation. (3) Nothing in this section is intended to affect the powers of a substitute decision‑maker appointed for a person under a law of a State or Territory.
7. The Principles state, in s 15E, that Pt 4A "does not affect the operation of any law of a State or Territory in relation to restraint".
8. Failure by an approved provider to meet their responsibilities set out in the Aged Care Act (under s 54-1) and the Principles can lead to the imposition of sanctions on the provider under Pt 7B of the Aged Care Quality and Safety Commission Act 2018 (Cth). This can include revocation or suspension of approval, restricting the payment of subsidies, and other sanctions: ss 63N and 63R of the Aged Care Quality and Safety Commission Act.
9. Other regulatory requirements in relation to the use of restraints at the federal level also took effect on 1 July 2019. Whilst these requirements do not have a direct bearing on the matters before us in this matter, they reflect the recent attention given to the issue of restraint in residential aged care services. For example, aged care providers must demonstrate that clinical care is supported by a clinical governance framework that minimises the use of restraint (the Principles, sch 2, cl 8(3)(e)(ii)). In addition, approved providers must provide data in relation to the use of physical restraint to the Aged Care Quality and Safety Commission under the National Aged Care Quality Indicator Program: Aged Care Legislation Amendment (Quality Indicator Program) Principles 2019 (Cth), sch 1.

Restrictive Practices in NSW

1. It is recognised that the use of restrictive practices "can deprive people of their liberty and dignity - basic legal and human rights" (Australian Law Reform Commission's Report on Elder Abuse - A National Legal Response (ALRC Report 131), [4.183]). The Royal Commission into Aged Care Quality and Safety's Interim Report: Neglect (Vol 1) ("Interim Report") describes the use of restraint in residential aged care (p 193) as "an affront to dignity and personal autonomy", that it carries "risks of serious physical and psychological harm" and that: [i]n general, restraint should be used only in very narrow circumstances and be subject to safeguards. The expert evidence is that physical restraint should be used only where it is absolutely necessary to protect a person from a serious and imminent risk of harm, and that medicines that have the effect of restraining a person be used in accordance with clinical criteria and guidelines.
2. The failure to obtain informed consent where required by law was also stated in the Interim Report to "ignore the rights of older Australians" (p 208).
3. Whilst there is no statutory definition of restrictive practices and/or physical or chemical restraint under NSW legislation, 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 by a guardian with the authority to do so.
4. The Tribunal in HZC [2019] NSWCATGD 8 ("HZC") provided a brief history of the nature of restrictive practices and the role of the Tribunal as follows: 32 It has long been understood that some members of our society, who receive ongoing support in their activities of daily living, may engage in certain behaviours which involve physical or other risks to themselves and others and that responses need to be developed to reduce or remove those risks. 33 Over time, those behaviours have commonly been described as "challenging behaviours," or more recently, "behaviours of concern" and the practices used to reduce or prevent them have become known as "restrictive practices". 34 The Tribunal has for several years recognised that decision making about the use of restrictive practices is a matter which it should recognise as a specific function which might be assigned to a guardian, so that the guardian's role in making decisions about such matters is clear and to avoid the use of plenary orders, as required by s 15(4) of the Act. 35 Similarly, over time, through clinical practice the nature of the restrictive practices which are used have been categorised and grouped in such a way as to allow their consistent description. Whilst there is a very broad range of restrictive practices which are used in the support of people with a disability, commonly used and understood terminology has developed. 36 NSW, however, has no legislative definition of restrictive practices or any of the subcategories of restrictive practice which are used in practice. As a result, the decisions of this Tribunal and the former Guardianship Tribunal of NSW have developed alongside clinical practice and have used the descriptions of the various practices that are understood within the disability support sector.
5. In HZC, the Tribunal was considering the impact of another significant development at a federal level in relation to the use of restrictive practices, namely the commencement of the NDIS and the obligation placed on all registered NDIS providers and behavioural support practitioners to comply with the requirements of the NDIS Quality and Safeguards Commission (NDIS Commission) including those outlined in the NDIS Rules.
6. The Tribunal recognised that the definition of restrictive practices set out in s 9 of the National Disability Insurance Scheme Act, namely "any practice or intervention that has the effect of restricting the rights or freedom of movement of the person with disability" was "consistent with the common usage of the phrase by the Tribunal" ([38]).
7. The NDIS Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following: (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.
8. In HZC the Tribunal adopted these definitions on the basis that 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 definitions are applied throughout the quality and safeguards arena and within the Tribunal" (at [45]).
9. The experience of this Tribunal and the former Guardianship Tribunal has been that when compared to applications made in relation to the use of restrictive practices in the disability sector in NSW, it has received comparatively few applications for guardianship for people living in residential aged care in NSW and in respect of whom restrictive practices are sought to be used. This does not, of course, mean that such practices have not been utilised, just that for those people who are unable to provide their own informed consent the appointment of a guardian to give or withhold consent to their use has not been sought.
10. We note that a complex regulatory landscape now exists by the development at a federal level of the two different schemes created under Pt 4A of the Principles and the NDIS Rules to address the use of restrictive practices and restraint, with different definitions of such practices and different obligations placed on those proposing to utilise the practice.
11. Although this is not an issue in VZM's particular circumstances as there was no evidence put to us that VZM is an NDIS participant, it is certainly possible to imagine a scenario in which different people living in the same residential aged care facility in relation to whom restrictive practices are sought to be utilised could be subject to different regulatory regimes depending on whether one person, and not another, is a participant in the NDIS. This issue may arise for further consideration on another day.
12. The reality that there are two regulatory schemes dealing with restrictive practices at a federal level is a matter with which this Tribunal must grapple in relevant applications before it. The Tribunal must consider whether the person the subject of the application is living in a residential aged care facility, or is living in supported accommodation and a participant in the NDIS. In either case, 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 this Tribunal with the appropriate authority. This is because the guardian's authority makes lawful that which would otherwise be unlawful under the common law principles as outlined at [47]. The appointment also ensures that a person's rights are protected. The appointment of a guardian with the necessary authority is consistent with s 15E of the Principles which states that Pt 4A "does not affect the operation of any law of a State or Territory in relation to restraint".

Definitions of "restraint"

1. Taking an approach similar to that adopted by the Tribunal in HZC in the context of the NDIS and the NDIS Rules, we decided it was appropriate to undertake the task of considering whether having regard to the definitions in Pt 4A of the Principles in relation to "restraint", "physical restraint" and "chemical restraint", it is in the best interests of people to whom the Principles apply that the Tribunal use those definitions in applications before it. In this context we note the following. 1. Nothing in the Aged Care Act, the Principles or the definitions contained in the Principles is binding on the Tribunal when considering whether it should appoint a guardian with the function of making decisions about restrictive practices. 2. There would, however, seem to be equally sound reasons as those expressed in HZC as to why it would promote the welfare and interests of people in relation to whom restrictive practices are being used in residential aged care facilities in NSW for there to be some consistency in the way definitions are applied in the aged care arena and within the Tribunal: s 4(a) of the Guardianship Act. 3. We acknowledge that doing so would, however, create two different sets of definitions of restrictive practices depending on whether a person was living in residential aged care and subject to the Principles or was an NDIS participant. For the reasons previously mentioned, this is however a reality created by the two different federal regulatory regimes. 4. "Restraint" is defined in s 4 of the Principles 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". This is consistent with the Tribunal's use and understanding of restrictive practices noting, however, the absence of a reference in the definition to a restriction on the "rights" of the person (see, for example, s 9 of the National Disability Insurance Scheme Act that 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" [Emphasis added]). 5. "Chemical restraint" is defined in the Principles as meaning "a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person's behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition". This is consistent with the Tribunal's use and understanding of the use of medication or other chemical substances as a restrictive practice to manage a person's behaviour rather than to treat a medical condition (HZC, [71]-[98]) and we are satisfied that it should be adopted as an appropriate definition in these circumstances. 6. "Physical restraint" is defined in the Principles as meaning "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". This definition in the Principles is a "catch-all" term and can be understood to comfortably include a broad range of practices which were historically regarded by the Tribunal as constituting restrictive practices. For this reason, we were satisfied that it should be adopted as appropriate definition. 7. The definitions may not, however, encapsulate all types of restrictive practices previously considered by the Tribunal given the definition of "restraint" that underpins the definition of "physical restraint" is limited to a practice, device or action that "interferes with a consumer's ability to make a decision" and "restricts a consumer's free movement". It may not easily encompass, for example, a restraint that restricts a person's access to items in their environment. An example of this is provided in HZC (at [53]-[56]) in that HZC's access to food was restricted to deal with behaviours arising from her genetic condition and this was regarded as an environmental restraint. 8. Our findings as to the relevance and utility of adopting the definitions contained in the Principles do not mean that the categories of restrictive practice in the aged care arena for which a guardianship order may be sought is closed. This will depend on the particular circumstances of an individual and the facts in each case. 9. The definitions of "restraint", "chemical restraint" and "physical restraint" should also be understood in the context of Pt 4A as a whole. Under s 15F of the Principles, physical restraint, as a last resort, may only be utilised if the consumer is assessed as "posing a risk of harm to the consumer or any other person" (s 15F(1)(a)(i)). A number of other requirements need to be met including the use of alternatives to restraint to the extent possible (s 15F(1)(b)) and the restraint must be the least restrictive form of restraint possible (s 15F(1)(d)). 10. In relation to chemical restraint, obligations are placed upon the approved provider in preparing the consumer's care and services plan in accordance with the Aged Care Quality Standards to identify: "the consumer's behaviours that are relevant to the need for the restraint (s 15G(2)(b)(i) of the Principles), the alternatives to restraint that have been used (s 15G(2)(b)(ii) of the Principles), and the reasons the restraint is necessary (s 15G(2)(b)(iii) of the Principles). 11. Seen therefore in the context of Pt 4A as a whole, the definitions of physical and chemical restraint should be understood as being part of a regulatory framework in which restraint is used to address what may be termed behaviours of concern (or "changed behaviours" in relation to the behavioural and psychological symptoms of dementia (Royal Commission into Aged Care Quality and Safety's Interim Report: Neglect (Vol 1) (p 194)). For reasons previously outlined, this is consistent with the Tribunal's understanding and history of determining applications in relation to restrictive practices.

Consent by a "consumer representative"

1. Under the Principles, an approved provider must not use a physical restraint unless the provider has the informed consent of the consumer or the "consumer's representative" (s 15F(1)(e) of the Principles). In relation to the use of chemical restraint, the obligation on an approved provider differs and the "consumer's representative" need only be "be informed before the restraint is used if it is practicable to do so" (s 15G(1)(c) of the Principles).
2. In VZM's circumstances it was put to us that a physical restraint was being used in the form of bed rails. LZM is someone who is likely to fall within the definition of "representative" of VZM in s 5 of the Principles, that is, given VZM's inability to do so, he is someone who would have nominated himself as a person to be told about matters affecting his wife (s 5(1)(b)(i) of the Principles). Further, the Aged Care Facility is likely to be satisfied that he has a connection with VZM, being her partner (s 5(2)(a) of the Principles), and is concerned for her safety, health and well-being (s 5(1)(b)(ii) of the Principles). BYD may also meet this definition being a "close relation" of VZM (s 5(2)(a)).
3. Given therefore that LZM could provide informed consent to the use of a physical restraint for his wife under s 15F(1)(e) of the Principles, it is relevant to consider the consent pathway set out in the Principles as this may have a bearing on whether it is practicable for services to be provided to someone in VZM's position without the appointment of a guardian under the Guardianship Act. Put simply, if the Principles set out a pathway for substitute consent to be provided for physical restraint, then why does a guardian under the Guardianship Act need to be appointed? In relation to this issue we make the following observations. 1. The use of restrictive practices that, under the common law applied in NSW could constitute assault, battery or false imprisonment, potentially exposes providers to both civil and criminal liability unless the use of such practices is authorised, justified or excused by law. 2. The common law doctrine of necessity can be relied on in limited circumstances to justify what may be otherwise regarded as a trespass on the person (Hunter New England Area Health Service v A (2009) 74 NSWLR 88). The consent of the person who is subject to the restrictive practice may also be a defence. In circumstances in which the person is incapable of providing informed consent, a guardian appointed under the Guardianship Act with the appropriate authority may provide the necessary consent. That consent will have effect as if the consent had been given by the person under guardianship and as if the person under guardianship had the legal capacity to do so (s 21C of the Guardianship Act). 3. Unless a person's "consumer representative" is also the person's appointed guardian with appropriate authority, consent given by a "consumer's representative" under the Principles to the use of a restrictive practice or restraint on a person may not amount to a defence. 4. Therefore, whilst a provider may comply with the Principles by seeking the consent of a "consumer's representative" in order to meet its reporting obligations under the Aged Care Act in relation to the use of physical restraint, only a guardian appointed pursuant to the Guardianship Act with the appropriate decision making authority will have the legal authority to consent to the restraint if the person is incapable of giving their own consent. The inclusion of s 15E in the Principles (Pt 4A "does not affect the operation of any law of a State or Territory in relation to restraint") appears to acknowledge as much noting however, as previously discussed, that the Guardianship Act does not make reference to restraint or restrictive practices in the text of the legislation. The role of a substitute decision maker appointed under State or Territory law is also expressly acknowledged in ss 5(2)(c) and (3) of the Principles dealing with the definition of "representative".
4. Other aspects of the consent provisions in the Principles also warrant mention. 1. In order to fall within the definition of "representative" for someone who has "nominate[d] themselves as a person to be told about matters affecting a consumer" (s 5(1)(b)(i) of the Principles), the relevant aged care facility must be satisfied that the proposed representative has a "connection with the consumer" and "is concerned for the safety, health and well-being of the consumer" (s 5(1)(b)(ii) of the Principles). Substitute decision makers appointed by a State and Territory "guardianship board" (which can be taken to include tribunals) are expressly recognised as having a "connection with the consumer" (s 5(2)(c) of the Principles). The making of an order that appoints substitute decision makers is in most states and territories subject to regular review by quasi-judicial tribunals or is an appointment made by the tribunal itself. This reflects the seriousness of decisions concerning the use of chemical and physical restraints, practices that may have profound implications for a person's autonomy and freedom of movement. 2. A range of other categories of potential representatives is also recognised in the same way as substitute decision makers appointed by state and territory tribunals and as having a "connection with the consumer". These categories include a "partner, close relation or other relative of the consumer" (s 5(2)(a) of the Principles) and a "person [who] represents the consumer in dealings with the organisation" (s 5(2)(d) of the Principles). Two issues arise from this. 1. Firstly, we note that the ability of a person to "nominate themselves as a person to be told about matters affecting a consumer" (s 5(1)(b)(i) of the Principles) may well operate in a way that promotes the interests of someone in VZM's circumstances given the evidence of the committed care and support that her husband and sister provide to her, but this would not necessarily be a universal experience. 2. Second, under the Principles, the relevant aged care facility is given the responsibility of deciding whether the person "is concerned for the safety, health and well-being of the consumer" and, if so satisfied, that person becomes the "representative" for decisions about the use of physical restraint, and the person who is informed, if practicable, about the use of chemical restraint. This is able to occur without review or oversight by any authority. Given the seriousness of the decisions to be made about restraint, it appears incongruous that the safeguarding mechanisms surrounding such decisions vary so significantly within the Principles depending on who is recognised as a "representative". This lack of oversight and review is concerning when viewed, in particular, through the prism of Article 12(4) of the UN Convention on the Rights of Persons with Disabilities that requires that: measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. [Emphasis added] 1. Confusion may also arise in relation to the consent pathway by the inclusion in the definition of "representative" in s 5(2)(b) of the Principles of a person holding "an enduring power of attorney given by the consumer". In NSW, an enduring power of attorney made under the Powers of Attorney Act 2003 (NSW) can only address matters involving the principal's legal and financial affairs. It does not empower an attorney to make decisions about the principal's lifestyle, health or medical treatment decisions. 2. Although not directly relevant to the application in relation to VZM, we note that the consent pathway in relation to chemical restraint under s15G of the Principles potentially raises matters of concern in terms of its application in NSW. An approved provider must not use a chemical restraint unless, amongst other things, "a medical practitioner or nurse practitioner has assessed the consumer as requiring the restraint and has prescribed the medication" (s 15G(1)(a) of the Principles). Note 1 to s 15G of the Principles references codes of appropriate professional practice for medical practitioners and nurse practitioners that provide for practitioners to obtain informed consent before prescribing medications. Note 2 states that "State and Territory legislation deals with who can consent to the prescribing of medication for a consumer who cannot consent because of any physical or mental incapacity." 3. Under the Guardianship Act, the use of medications to control a person's behaviour, rather than to treat a diagnosed medical condition, is a matter which requires the consent of a guardian with authority to decide about the use of restrictive practices if the person is unable to provide their own consent (HZC, [71]-[98]). The use of medications in these circumstances is not regarded as requiring consent to medical treatment which would permit a "person responsible" to give consent under Pt 5 of the Guardianship Act. 4. In NSW therefore, the proposed use of both physical and chemical restraint requires the consent of a guardian appointed under the Guardianship Act with the appropriate authority. To the extent that s 15G of the Principles, along with Note 1 and Note 2, is understood to suggest otherwise for aged care residents living in NSW, then this is incorrect.

VZM's circumstances

1. Having accepted that the definitions contained in Pt 4A of the Principles are appropriate to be adopted by the Tribunal when considering applications in relation to people living in residential aged care, we return to VZM's particular circumstances to determine whether the use of bed rails for the reasons given to us constitute physical restraint. If we find in the affirmative, then we would exercise our discretion to make a guardianship order for VZM and appoint a guardian with the authority to give or withhold consent to their use. For the reasons previously outlined, a "consumer representative" under the Principles does not have the authority in NSW to provide substitute consent for the use of restraint.
2. For the reasons that follow, we find that the use of bed rails for VZM does not constitute a restraint: 1. Due to VZM's physical condition that includes quadriplegia, she has no free movement. The bed rails do not constitute a restriction on VZM's free movement as it is VZM's physical condition that restricts her movement. The bed rails do not therefore fall within the definition of physical restraint in s 4 of the Principles. 2. Further, VZM does not engage in behaviours of concern or changed behaviours. The evidence before us is that she is immobile and relies entirely upon the assistance of others for all of her needs. The use of bed rails, in her case, is to prevent her rolling out of bed by accident which, if it occurred, could cause her serious harm. They are also used to support cushions which enable her to lie comfortably on either side of her body at times. 3. It is fictional to suggest bed rails, in this case, restrict VZM's rights or free movement. It is arguably the case that, on the contrary, they provide her more freedom: to be positioned in ways other than on her back, and to have better access to a view out the window.
3. For these reasons, the use of bed rails in the manner and circumstances of this case does not amount to a physical restraint.
4. This is not to suggest that the use of bed rails in other cases would not amount to a physical restraint. Clearly, in some cases, their use may very well restrict a person's free movement for the purposes of controlling their behaviour.

Conclusion

1. Given the only additional services sought by the applicant, namely the use of bed rails for VZM's safety and comfort, can be provided without the need for a guardianship order, there would be no practical use for a guardianship order in this case. It would not, in our view, promote VZM's welfare and interests pursuant to s 4(a) of the Guardianship Act to make a guardianship order in circumstances where her family members can effectively advocate on her behalf, as the evidence indicates they have been doing for many years, without the authority of an order. In these circumstances, we have decided not to exercise our discretion to make a guardianship order.

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

Amendments 14 September 2020 - Publication restriction. 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: 14 September 2020