BGT

[2021] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BGT [2021] NSWCATGD 9

Hearing dates:

1 April 2021

Date of orders:

1 April 2021

Decision date:

01 April 2021

Jurisdiction:

Guardianship Division

Before:

J Toohey, Senior Member (Legal)
Dr H Burnet, Senior Member (Professional)
M A Oxenham, General Member (Community)

Decision:

1. A guardianship order is made for BGT.

2. XZX of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 1 April 2021.

4. This is a limited guardianship order giving the guardian custody of BGT to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence BGT’s behaviour:

1. Environmental restraint

b) Other Function

To make decisions concerning use of a GPS sole tracker

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BGT to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence BGT’s behaviour:

(i) as a last resort to prevent BGT harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon BGT, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – application for a guardianship order - whether a guardianship order should be made, and what order should be made – whether use of GPS sole tracker constitutes a restrictive practice – use of environmental restraint – subject person lacks safety awareness and has history of absconding in his wheelchair – use of locked door to prevent subject person exiting – private guardian appointed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 17, 18(1)

Mental Health Act 2007 (NSW)

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

Surveillance Devices Act 2007 (NSW), s 9(1)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

Re B [2011] NSWSC 1075

Texts Cited:

Nil

Category:

Principal judgment

Parties:

004: Guardianship Application

BGT (the person)
XZX (applicant)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2009/00474225

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal appointed BGT’s sister, XZX, as his guardian for a period of 12 months to give or withhold consent as to whether a restrictive practice in the form of environmental restraint should be used to influence BGT’s behaviour.

2. The Tribunal also gave the guardian the function to make decisions concerning the use of a GPS sole tracker.

Background

3. BGT is 57 years old. He has a brain injury as a result of a motor vehicle accident and lives in supported accommodation managed by a service provider. His estate has been managed by the NSW Trustee and Guardian since July 2014.

4. On 17 February 2021, BGT’s sister, XZX, lodged an application with the Tribunal proposing that she be appointed his guardian in order to consent to environmental restraints. The restraints are detailed in an Interim Behaviour Support Plan dated 4 December 2020 and comprise locked doors and a GPS sole tracker and are aimed at ensuring BGT does not leave the group home unaccompanied.

The hearing

5. The hearing was conducted by telephone. BGT attended with staff from the group home. XZX attended from a separate location. Ms Z, a behaviour support practitioner, attended on behalf of the practitioner who prepared the Interim Behaviour Support Plan.

6. A list of the parties to the application and those who attended the hearing is at the end of these Reasons for Decision. [Appendix removed for publication.]

What does the Tribunal have to decide?

7. The Tribunal may make a guardianship order in respect of a person if, after conducting a hearing, it is satisfied that he or she is a person in need of a guardian: s 14(1) of the Guardianship Act 1987 (NSW) (“the Act”).

8. A person is “in need of a guardian” if, because of a disability, he or she is totally or partially incapable of managing his or her person: s 3(1) of the Act.

9. A “person who has a disability” means a person who is intellectually, physically, psychologically or sensorily disabled; is of advanced age; is mentally ill within the meaning of the Mental Health Act 2007 (NSW); or who is otherwise disabled; and who 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 Act.

10. We have to decide:

• Is BGT someone for whom the Tribunal can make a guardianship order because he is a person “in need of a guardian”?

• If so, should the Tribunal make a guardianship order and, if so, what order should be made?

• If an order should be made, who should be the guardian and how long should the order last?

11. In making any decision under the Act, we must observe the principles in s 4 of the Act. They include that BGT’s welfare and interests should be given paramount consideration, his freedom of decision and action should be restricted as little as possible, his views should be taken into consideration, the importance of preserving his family relationships and cultural and linguistic environments should be recognised, and he should be protected from neglect, abuse and exploitation.

Is BGT someone for whom the Tribunal can make a guardianship order?

12. Every person who is the subject of an application is presumed to have capacity to make their own decisions unless there is sufficient evidence to rebut that presumption.

13. There is limited current medical information before the Tribunal about BGT’s disability.

14. The Tribunal’s Reasons for Decision dated 28 July 2014, when the financial management order was made, refers to an Aged Care Assessment Team assessment in June 2013 and records from a nursing home where BGT was living. The Tribunal noted that that BGT suffered a severe brain injury when he was hit by a car at the age of 20. His care records showed he had right-sided hemiparesis, right hand contractures, dysphasia and dysarthria, and was confined to a wheelchair. BGT sustained further serious and permanent injuries in an accident in his motorised wheelchair in December 2013.

15. A Chronic Disease Management Plan prepared by BGT’s general practitioner, Dr Y, on 11 June 2020 shows that BGT has a brain injury, Type 2 diabetes, expressive dysphasia and epilepsy, but it provides no detail about their effect on his decision-making capacity.

16. The Interim Behaviour Support Plan details BGT’s “behaviours of concern” including verbal aggression, absconding, self-harm language and behaviour, and inappropriate touching and comments to others.

17. There was no dispute from anyone at the hearing that, as a result of his brain injury, BGT lacks capacity to make informed decisions about important life matters for himself.

18. We are satisfied that the evidence supports the conclusion that BGT has a permanent disability, being an acquired brain injury, as a result of which he is unable to make informed decisions about important life matters for himself. We are satisfied that he is a person for whom we can make a guardianship order.

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

19. Even though satisfied that BGT is a person for whom the Tribunal can make a guardianship order, we must still decide whether we should make an order. In doing so, we must observe the principles in s 4 of the Act. We must also have regard to the matters in s 14(2) of the Act which include BGT’s views and the views of any person who has care of him, and the practicability of providing services to him without the need for an order.

20. The Interim Behaviour Support Plan includes a restrictive practices schedule which details environmental restraints in the form of a locked front door and a GPS sole tracker. The rationale for both is stated to be BGT’s history of ”taking off” down the street if left alone, in conjunction with his lack of safety awareness. When he leaves, he will drive his wheelchair at approximately 40 kilometres an hour, placing himself at risk. According to the Plan, several months ago he crossed a busy highway on his way to the local pub. On another recent occasion, he left the group home to go to the local shops located on a busy highway. He crossed the road with no awareness of oncoming traffic and cars had to slow down for him. On another occasion his wheelchair went over the curb and he fell onto the side of the road.

21. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (“the Rules”) define, and regulate the use of, certain “restrictive practices”. A restrictive practice is a regulated restrictive practice if it is or involves any of the following:

1. 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;

2. 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;

3. 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;

4. 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;

5. environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities.

22. Registered service providers may only use restrictive practices in accordance with the Rules and with the consent of a guardian if the person concerned is unable to give informed consent himself or herself to their use.

23. We are satisfied that the use of locked doors to restrict BGT’s free access to the outdoors is a regulated restrictive practice in the form of environmental restraint. We are satisfied that BGT is not able to give informed consent himself to its use and that the consent of a guardian is required.

24. Ms Z gave evidence that she understood the GPS sole tracker was included in the Interim Behaviour Support Plan on advice that it is a restrictive practice because it interferes with BGT’s human right of free access.

25. We agree that the use of the GPS sole tracker raises issues of interference with BGT’s right of free access to his environment but we are not persuaded that it constitutes an environmental restraint within the meaning of the Rules. It does not of itself hinder or prevent his free access to his environment. Rather, it enables staff and others to locate him and bring him home if the environmental restraint fails for any reason.

26. The Surveillance Devices Act 2007 (NSW) prohibits the installation, use and maintenance of a tracking device to determine the geographical location of a person without his or her express or implied consent: s 9(1). There are some exceptions to this prohibition but they do not appear to be relevant here.

27. We are satisfied that BGT is not able to give informed consent himself to the use of the GPS sole tracker. Given the express prohibition in the Surveillance Devices Act, we have decided that a guardian is needed to give or withhold consent to its use to determine BGT’s location.

28. We are satisfied that we should make a guardianship order for BGT and appoint a guardian with authority to give or withhold consent to the use of a locked door and, separately, to the use of the GPS sole tracker.

Who should be appointed and for how long?

29. In deciding whether a person is able to undertake the role of guardian, we must consider whether she or he able to exercise the functions in accordance with the principles set out in s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].

30. We must also be satisfied that the proposed guardian has a personality which is generally compatible with that of the person for whom she or he will be guardian, that she or he has no undue conflict of interest and is willing and able to exercise the functions of the proposed order: s 17 of the Act.

31. XZX is willing to be appointed as guardian for BGT, and BGT indicated at the hearing that he would want her to be his guardian. Her appointment is supported by staff at the group home. We are satisfied that she is willing and able to exercise at the functions of the proposed order in accordance with the principles in s 4 of the Act and that her appointment accords with BGT’s wishes.

32. Subject to exceptions which do not apply here, an initial order can be made for such period not exceeding one year from the date it is made: s 18(1) of the Act. In this case, there will be a continuing order will be for 12 months. The order will be reviewed at the end of that time.

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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

Decision last updated: 15 June 2021