BQM

[2019] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BQM [2019] NSWCATGD 1

Hearing dates:

21 January 2019

Date of orders:

21 January 2019

Decision date:

21 January 2019

Jurisdiction:

Guardianship Division

Before:

J Claridge, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

1. A guardianship order is made for BQM.

 

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

 

3. This is a continuing guardianship order for a period of 12 months from 21 January 2019.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Accommodation

 

To decide where BQM may reside.

 

b) Medical/Dental consent

 

To make substitute decisions about proposed minor or major medical or dental treatment, where BQM is not capable of giving a valid consent.

 

c) Restrictive Practices

 

To make decisions about the following restrictive practices in accordance with the comprehensive behaviour support plan dated 26 October 2018:

 

Seclusion: exclusionary time out to identified break out areas within the accommodation setting;

 

Mechanical restraint: use of a travel harness when travelling in a vehicle;

 

Chemical restraint: routine use of psychotropic medication;

 

Environmental restraint: locking of exit doors and gates.

 

AUTHORITY:

 

6. The guardian has the following authority:

 

a) Authority to override objections to medical treatment

 

i) The guardian may override the objection of BQM to major or minor medical treatment.

 

CONDITIONS:

 

7. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian may only consent to:

 

i) Restriction of BQM’s freedom of movement;

 

ii) The administration of psychotropic medication; or

 

iii) Other restrictive practices

 to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program (or within the context of positive programming addressing BQM’s lifestyle and skills development needs) including strategies to ensure that she has reasonable opportunities to access the community.

Catchwords:

GUARDIANSHIP – application for guardianship order – guardianship order made – appointment of private guardian – functions of guardian

  RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – seclusion – chemical restraint – mechanical restraint – environmental restraint – whether practice is a restrictive practice

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1), 18(1)
National Disability Insurance Scheme Act 2013 (Cth), s 9
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

  BQM (the person)
QAM (applicant)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2018/00351119

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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Background

1. BQM is 22 years old and lives in supported accommodation in Northwest Sydney managed by a disability service provider.

2. BQM is supported by her mother, QAM.

3. It is reported that BQM has an intellectual disability.

4. On 15 November 2018, the Tribunal received an application for guardianship for BQM from QAM.

Written evidence

5. Accompanying the application are four submissions for a restricted practice authorisation dated September and October 2018, summary report dated 25 September 2018, support model assessment dated 28 September 2018, behaviour assessment report dated September 2018, comprehensive behaviour support plan dated 26 October 2018 and various incident reports.

GUARDIANSHIP

6. In determining an application for guardianship, the Tribunal must consider:

• Is the person who is the subject of the application someone for whom the Tribunal could make an order because he/she has a disability which prevents him/her from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is BQM someone for whom the Tribunal could make an order?

7. By s 14(1) of the Guardianship Act 1987 (NSW) (‘the Act’) we have power to make a guardianship order for a person if we are satisfied that he/she is “a person in need of a guardian”.

8. 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 Act. The disability must restrict a person in one or more major life activity to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.

9. Ms Z, senior clinical consultant, reports that BQM has Trisomy of Chromosome 15 and as a result has a severe intellectual disability and autism spectrum disorder. Ms Z reports that BQM has limited verbal language, poor gait and poor muscle control. BQM also has epilepsy with frequent seizures, approximately fortnightly. These seizures can affect her mood, behaviour and wellbeing for days leading into and following a seizure.

10. We have a number of reports and other documents available to us, which consistently indicate that BQM has diagnoses of intellectual disability and epilepsy. These reports also indicate, consistent with the view expressed by the witnesses at the hearing, that as a result of these disabilities BQM is unable to make important personal health and lifestyle decisions, such that she needs supervision or assistance to function in society and has an inability to manage her person.

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

11. Before making a guardianship order, we must have regard to all of the following matters set out in s 14(2) of the Act:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

12. Additionally we must observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict BQM’s freedom of decision making and freedom of action as little as possible. As far as possible we should enable BQM to be self-reliant in matters relating to BQM’s personal, domestic and financial affairs. At the same time, we must also aim to protect BQM from neglect, abuse and exploitation. The paramount consideration at all times is BQM’s welfare and interests.

13. BQM attended the hearing for a short time. BQM was unable to make a meaningful contribution to the hearing as she did not understand the nature and effect of today’s proceedings. We did not ask that she stay as we did not want to distress BQM in any way and only interrupt her routine as little as possible.

14. Ms Y, team leader, stated that the group home where BQM lives is not appropriate for her needs and that another group home has been identified. Ms Y stated that the current plan is for BQM to move in February 2019. QAM stated that she did not agree with the proposed move. She stated that her daughter has done well in her current environment and that a move to a house where she will initially be the sole resident is not in her daughter’s interests. This surprised Ms Y. Everyone agreed at the hearing that the decision about where BQM lives has yet to be made. It also appears that this is not a decision that can be made on an informal basis due to the differing views of the accommodation provider and QAM.

15. BQM routinely takes Clozapine, which is monitored through blood tests. QAM stated that her daughter does not object strongly to the blood tests, however, she agreed that a nurse or other professional has to hold her arm in place so that the blood can be taken. Ms Y agreed that some level of force is needed as BQM will object if she becomes aware of the procedure. QAM also advised that she takes her daughter to the dentist quite regularly where she is given an injection before the dental procedures are carried out as BQM does object to treatment. We therefore decided that as Person Responsible, QAM may need further authority to override her daughter’s objections to medical and dental treatment. QAM agreed that she needed the additional authority to override her daughter’s objections.

16. QAM stated that her daughter attends a day program four days each week, which she loves. She stated that the National Disability Insurance Scheme (NDIS) plan of supports is to be reviewed in March 2019. QAM is very involved with the plan and her daughter’s care. There is no need to give a guardian specific authority to consent to services as BQM currently receives a good level of services.

17. We have also been asked to appoint a guardian with authority to consent to certain practices described as restrictive practices in a comprehensive behaviour support plan for BQM.

18. The Act does not define restrictive practices.

19. Generally, however, a restrictive practice has been viewed as any practice or intervention that restricts a person’s rights, freedom of movement or access to objects. Restrictive practices are generally used to manage challenging behaviour.

20. The application has been brought today as a result of the introduction of the NDIS and the implementation of the NDIS Quality and Safeguarding Framework (Framework), which underpins that scheme.

21. Under the Framework, states and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners.

22. 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 a person with disability’.

23. Since 1 July 2018, registered NDIS providers in New South Wales are regulated by the NDIS Quality and Safeguards Commission and are responsible for ensuring that proper consent is obtained for the use of restrictive practices.

24. Rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) states that a restrictive practice is a regulated restrictive practice if it involves, relevantly to today’s hearing:

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

25. In determining if a practice is a restrictive practice for which informed consent is required we must balance the right to autonomy of the person with the need to manage challenging behaviours in the interests and welfare of that person. We consider these practices in light of the lawfulness of the practice as well as the context, nature, degree and purpose of the restrictions to ensure that the person’s rights are not breached.

26. We were provided with a number of documents, including a Comprehensive Behaviour Support Plan, prepared for BQM, which stated that a number of restrictive practices are being used in relation to her care. In a summary report prepared by Ms Z it states that: “[BQM]’s disability, sensory processing and self-regulation difficulties mean that she has difficulty maintaining focus / attention and regulating her emotions, body and behaviour……her current behaviours of concern include self-injurious behaviour, verbal and physical aggression towards others, property damage, leaving supervised care, medication refusal and smearing faeces.”

27. Ms Y advised that exclusionary time out is used on a needs basis in response to behaviour that has escalated to severe physical aggression towards others. Exclusionary time out is only utilised when all other strategies have not been successful to manage the incident and to support BQM to return to a calm state.

28. Ms Y stated that when BQM becomes distressed she is encouraged to move to an identified break-out space, the door is held slightly a jar and not locked. Ms Y states that this practice is used with success to decease behaviours of concern in a very short time.

29. QAM agreed that this practice, which restricts her daughter’s freedom of movement by removing her to a secluded and safe location, is necessary at times to allow her daughter to calm down.

30. Ms Z states that the use of exclusionary time out has been identified to decrease BQM’s level of distress and decrease her use of challenging behaviours, particularly after others have been removed from the immediate environment.

31. We accept that the use of exclusionary time out in the context described meets the criteria of seclusion as BQM is solely confined, without voluntary exit, in a physical space to manage challenging behaviour.

32. Ms Y stated that when travelling in a van to attend a day program, BQM is restrained by a travel harness and child locks are used to prevent exit from the van. Ms Y states that BQM becomes quite distressed when travelling in the van and the use of these measures is necessary to prevent injury to herself and to others travelling with her and to ensure that she does not attempt to get out of the van when it is moving. Ms Y stated that BQM does not object to using the travel harness.

33. QAM stated that as her daughter has become older she has become aware that she can move about in the van if not restrained. QAM also stated that her daughter is able to get out of a seat belt.

34. Although in place for the safety of BQM and others, the practice described is a form of mechanical restraint. The travel harness is used to restrict BQM’s movement whilst travelling with the intention of influencing her known behaviours of attempting to move within and to leave the vehicle and attempting to hit out at others.

35. Ms Y reported that Risperidal is put in BQM’s food to increase her compliance with prescribed medications to treat epilepsy and other conditions. Ms Y stated that a liquid form of the medication is put on her toast or croissant in the morning and on ice cream in the evening. BQM is no longer objecting. The primary reason for putting liquid Risperidal in BQM’s food is to manage her behaviour so that she will take other prescribed medications for diagnosed conditions.

36. We note that BQM is also prescribed medication to treat epilepsy and other conditions. Taking these medications is not a chemical restraint on BQM for the purposes of influencing her behaviour. As Person Responsible, QAM is able to consent to these medications on behalf of her daughter.

37. Ms Y also advised that BQM’s access to the community is at times restricted by locking doors leading to the outside environment and the side and driveway gates. This may be considered as an environmental restraint under Rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules, where a person’s free access to their environment is restricted.

38. Ms Y stated that the doors and gates are locked because of safety concerns for BQM. She will attempt to leave the group home and has no awareness of road safety.

39. Ms Z stated that this practice has been in place for some time, supporting a conclusion that a significant number of incidents have been reduced and BQM’s safety and risk of harm is prevented. If not in place, BQM is likely to run across roads putting her personal safety at risk. This measure is in place primarily for BQM and the doors and gates are unlocked when she is not at the group home.

40. Having carefully considered the evidence before us, we have decided to make a guardianship order, and to give the appointed guardian authority to make decisions about the use of the following restrictive practices, as described in BQM’s comprehensive behaviour support plan:

• exclusionary time out on a needs basis;

• use of a travel harness in any vehicle in which BQM travels;

• routine use of psychotropic medications to influence her behaviour;

• locking of exit doors and gates at any accommodation setting.

Who should be appointed as the guardian?

41. We have to be satisfied that any person appointed as a private guardian meets the following requirements under s 17(1) of the Act. He/she must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person and

3. be able and willing to exercise the functions of the order.

42. We are not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: s 15(3) of the Act.

43. The applicant proposes that she be appointed as BQM’s guardian.

44. QAM cared for her daughter at home until recently when BQM moved to a group home. QAM remains very involved in her daughter’s life and knows her well. QAM stated that she is both willing and able to take on the role of appointed guardian.

45. Ms Y and Ms X, coordinator of supports, both support the appointment of QAM as guardian.

46. We are satisfied that QAM meets the requirements to be appointed BQM’s guardian.

How long should the order last?

47. An initial continuing guardianship order can generally be made for a period not exceeding 12 months: s 18(1) of the Act.

48. We decided to make a 12 month reviewable order because at this time BQM’s accommodation is unclear and finding an appropriate group home may take time. Also Ms Y advised that BQM’s behaviour support plan will be updated if and when she moves.

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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: 12 February 2019