Brenda (a pseudonym)

[2024] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Brenda (a pseudonym) [2024] NSWCATGD 20

Hearing dates:

09 August 2024

Date of orders:

09 August 2024

Decision date:

09 August 2024

Jurisdiction:

Guardianship Division

Before:

S L Handebo, Senior Member (Legal)
Dr T P C Aczel, Senior Member (Professional)
P A Rutledge AM, General Member (Community)

Decision:

Review of Guardianship Order

The guardianship order for Brenda made on 31 August 2023 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 9 August 2024.

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

FUNCTIONS:

4. The guardian has the following functions:

(a) Accommodation

To decide where Brenda may reside.

(b) Health care

To decide what health care Brenda may receive.

(c) Medical/Dental consent

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

(d) Restrictive Practices

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

Chemical restraint

Environmental restraint

AUTHORITIES:

5. The guardian has the following authorities:

(a) Authority to override objections to medical treatment

(b) The guardian may override the objection of Brenda to major or minor medical treatment.

CONDITIONS:

6. The conditions of this order are:

(a) Standard Condition

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

(b) Aged Care Restrictive Practices Condition

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

(i) as a last resort to prevent Brenda harming herself or others; and

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Brenda or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on Brenda; and

(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Brenda’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Brenda’s circumstances.

Financial Management Application

1. The estate of Brenda is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of Brenda is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – 71-year-old subject person diagnosed with dementia – application for review of guardianship appointment – whether guardianship order should be varied to include a restrictive practice function – whether the use of Risperidone for the management of the behavioural and psychological symptoms of dementia constitutes a restrictive practice –whether the behavioural and psychological symptoms of dementia is a diagnosed mental disorder

WORDS AND PHRASES – behavioural and psychological symptoms of dementia – BPSD

FINANCIAL MANAGEMENT – application for financial management order – allegations of conflict of interest of proposed private financial manager – best interests served by appointment of NSW Trustee – NSW Trustee appointed – order made

Legislation Cited:

Aged Care Act 1997 (Cth), ss 54-9(1), 54-1(f)

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M, 46A

Quality of Care Principles 2014 (Cth), ss 5B(1), 15E(2), 15FA, 15FA(1)(f), 15FC

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
CJ v AKJ [2015] NSWSC 498
HZC [2019] NSWCATGD 8
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
JFL [2020] NSWCATGD 32
JUW [2023] NSWCATGD 3
M v M [2013] NSWSC 1495
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re B [2011] NSWSC 1075

Re D [2012] NSWSC 1006
SKN [2023] NSWCATGD 16
W v G [2003] NSWSC 1170
YJC v Public Guardian [2024] NSWCATAP 160

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

NSW Health, Assessment and Management of Behaviours and Psychological Symptoms associated with Dementia (BPSD): A Handbook, (2022)

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

Brenda (the person)
Vanessa (appointed guardian, carer)
Public Guardian

003: Financial Management Application

Brenda (the person)
Home Care Provider Social Worker (applicant)
Vanessa (carer, proposed financial manager)
NSW Trustee and Guardian

004: Requested Review of Guardianship Order

Brenda (the person)
Mid North Coast Local Health District (applicant)
Vanessa (appointed guardian, carer)
Public Guardian

Representation:

Solicitors:

P Im (Separate Representative for Brenda)

File Number(s):

NCAT 2023/00159290

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

1. Brenda is a 71-year-old woman who, at the time of the Hearing, was a respite resident at a Northern NSW Residential Aged Care Facility (the RACF). Brenda entered care at the RACF on 1 August 2024 following her discharge from hospital. Prior to her admission to hospital Brenda lived with her daughter and carer, Vanessa, at her home on the North Coast of NSW.

2. Brenda is previously known to the Tribunal. On 31 August 2023, the Tribunal made a guardianship order appointing Vanessa as Brenda’s guardian for an initial period of twelve months with the functions of accommodation (including to authorise others), services, health care and medical/dental consent (including authority to override objections).

3. On 17 July 2024, the Tribunal received an application from a social worker (the Home Care Provider Social Worker), on behalf of a NSW home care provider for a financial manager to be appointed for Brenda.

4. On 19 July 2024, the Tribunal received a request from a social worker, on behalf of Mid North Coast Local Health District, to review the guardianship order made on 31 August 2023. The Local Health District Social Worker proposed that the guardianship order be varied to include an additional restrictive practice function, and to appoint the Public Guardian as Brenda’s guardian.

5. On 25 July 2024, the Tribunal ordered Brenda be separately represented in the proceedings. Mr Im accepted this appointment.

6. These Reasons for Decision relate to the application for a financial management order, the requested review of the guardianship order made on 31 August 2023, and the statutory end-of-term review of the guardianship order.

7. The Hearing was conducted from the Tribunal’s Parramatta Registry on 9 August 2023, with all participants (other than Mr Im, who attended the Hearing in person) participating remotely by telephone or video. The Hearing was attended by Brenda, Vanessa, the Home Care Provider Social Worker, the Local Health District Social Worker, Mr Im, Nurse Practitioner Ms Brie, and Ms Davidson, Acting Executive Manager at the RACF.

8. Brenda attended the Hearing but was asleep for the duration of the Hearing and accordingly was not able to share any views in relation to the matters before the Tribunal.

9. The Hearing ran beyond the time allocated and, at the conclusion of the Hearing proper, it became apparent that it would be necessary for the Tribunal to also make contact with a duty guardian from the Public Guardian prior to making any final decisions. On this basis, the Tribunal’s decision was initially reserved pending the ability of the Tribunal to speak with the Public Guardian for the purpose of obtaining consent for the inclusion of a s 46A authority (Guardianship Act 1987 (NSW) (the Act)).

10. Later in the day, the Tribunal was able to make contact with the Public Guardian by telephone and was assisted by a duty guardian on behalf of the Public Guardian.

11. Following the conclusion of the Hearing proper, and subsequent discussions with the Public Guardian, the Tribunal decided:

1. To appoint the Public Guardian as Brenda’s guardian for a period of twelve months with the functions of accommodation, health care, medical/dental consent (including authority to override Brenda’s objections to medical treatment) and restrictive practices (chemical and environmental restraints); and

2. To appoint NSW Trustee and Guardian as Brenda’s financial manager.

12. It had been the Tribunal’s intention to obtain the views of the Public Guardian in relation to the discrete issue of whether the Public Guardian provides consent for the inclusion of a s 46A authority (i.e., authority to override Brenda’s objections to treatment). During the Tribunal’s discussions with the Public Guardian, the representative from the Public Guardian made a number of zealous submissions regarding the inclusion of a restrictive practices function. These submissions were to the effect that the proposed chemical restraints do not constitute restrictive practices, and accordingly, there is no basis for the inclusion of a restrictive practices (chemical restraint) function in any further order made.

13. The submissions made by the Public Guardian identify important issues of law and policy that warrant appropriate consideration in these Reasons for Decision, particularly in circumstances where the approach adopted by the Public Guardian was at odds from both a legal and factual perspective to the position adopted by the Tribunal. In circumstances where the balance of the parties had already made submissions regarding the use of restrictive practices, and those submissions concurred with the Tribunal’s finding that there is a need for the inclusion of a restrictive practices (chemical restraint) function, the Tribunal considered it unnecessary to reconvene the Hearing to take further submissions in response to the position adopted by the Public Guardian.

14. The representative from the Public Guardian submitted that the use of Risperidone for the management of behavioural and psychological symptoms associated with dementia does not constitute a chemical restraint. It was submitted by the representative for the Public Guardian that this position is not case specific, but rather reflects a legal and policy position whereby the Public Guardian do not, under any circumstances, provide consent to the use of Risperidone as a chemical restraint for residents of an aged care facility. The basis for this argument is that Risperidone is explicitly excluded from the definition of a chemical restraint, and that decisions regarding the administration of Risperidone instead fall within the domain of medical/dental consent. The Tribunal were unanimous in their rejection of these arguments, and when it was identified that there may be a difference of opinion in relation to this issue, the representative from the Public Guardian re-iterated their view that it is not a matter of opinion or interpretation, but rather a matter of public policy and law. The representative from the Public Guardian proceeded to inform the Tribunal that there is a need for greater public education regarding the misclassification of Risperidone as a restrictive practice.

15. Although it is unclear to the Tribunal whether the position advanced by the representative from the Public Guardian at Hearing accurately reflects a policy position adopted by the Public Guardian, the Tribunal considers it appropriate for there to be clarity provided around these issues.

16. Accordingly, these Reasons for Decision will firstly outline the Tribunal’s reasoning in rejecting the submissions made by the representative of the Public Guardian, before discussing the substantive applications before the Tribunal for consideration.

Does the use of risperidone for the management of behavioural and psychological symptoms associated with dementia (BPSD) constitute a regulated restrictive practice in the form of a chemical restraint?

17. In this matter, the Public Guardian asserted that the use of Risperidone for the management of BPSD does not constitute a regulated restrictive practice. The representative from the Public Guardian asserted that, as a matter of law and public policy, the use of Risperidone for the management of BPSD will never be considered to be a restrictive practice, and that it is explicitly excluded as such by the provisions of the Act. The representative from the Public Guardian asserted that Risperidone (for the management of BPSD) is incorrectly being identified as a restrictive practice by medical practitioners and residential aged care facilities, and that there is a need for public education as to what actually constitutes a restrictive practice. On this basis, the representative from the Public Guardian opposed the inclusion of a restrictive practices (chemical restraint) function in the guardianship order.

18. As a matter of law, the Public Guardian’s assertion that the use of Risperidone for the management of BPSD is explicitly excluded by the provisions of the Act from being characterised as a restrictive practice is entirely incorrect.

19. In NSW, there is no legislative definition of restrictive practices or any of the subcategories of restrictive practice. The provisions of the Act make no reference to “restrictive practices” and, as a matter of law and practice, the Tribunal has adopted the definitions contained within the Aged Care Act 1997 (Cth) (the Aged Care Act) and the Quality of Care Principles 2014 (Cth) (the Principles) when making decisions regarding the use of restrictive practices in residential aged care. Although the Commonwealth legislation is not binding on the Tribunal, it is in the best interests of the people to whom the Act applies for there to be consistency in the way that the definition and characterisation of restrictive practices are applied in NSW: HZC [2019] NSWCATGD 8; JFL [2020] NSWCATGD 32.

20. Neither the Aged Care Act nor the Principles make specific reference to any particular medications (including Risperidone) being excluded from consideration as a restrictive practice. In this sense, the arguments advanced by the Public Guardian cannot be accepted by the Tribunal. Notwithstanding this, although legally incorrect in the manner framed before the Tribunal, the arguments advanced by the Public Guardian give rise to the Tribunal considering the issue of if and when the use of Risperidone in residential aged care may constitute a restrictive practice. The Tribunal observes that this is vexed issue for which there are often inconsistent approaches and interpretations advanced before the Tribunal, and a detailed examination of the issue would be of assistance, both for this particular case and broader application.

Legal Framework

21. The Aged Care Act and the Principles govern the use of restrictive practices in residential aged care.

22. A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient: Aged Care Act, s 54-9(1).

23. Section 15E of the Principles sets out the definitions for the five categories of restrictive practices regulated under the Aged Care Act: chemical restraint, environmental restraint, mechanical restraint, physical restraint, and seclusion.

24. Section 15E(2) of the Principles defines a chemical restraint as a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for:

1. the treatment of, or to enable treatment of, the care recipient for:

1. a diagnosed mental disorder; or

2. a physical illness; or

3. a physical condition; or

2. end of life care for the care recipient.

25. An aged care provider must ensure that a restrictive practice is only used in accordance with the circumstances set out in the Principles: Aged Care Act, s 54-1(f).

26. Section 15FA of the Principles lists the requirements for the use of a restrictive practice. Section 15FC of the Principles outlines additional requirements that apply to the use of restrictive practices that are chemical restraints:

1. The following requirements apply to the use of a restrictive practice in relation to a care recipient that is chemical restraint:

1. the approved provider is satisfied that a medical practitioner or nurse practitioner has:

1. assessed the care recipient as posing a risk of harm to the care recipient or any other person; and

2. assessed that the use of the chemical restraint is necessary; and

3. prescribed medication for the purpose of using the chemical restraint; and

4. obtained informed consent to the prescribing of the medication for the purpose of using the chemical restraint;

2. the following matters have been documented in the behaviour support plan for the care recipient:

1. the assessments;

2. the practitioner’s decision to use the chemical restraint;

3. the care recipient’s behaviours that are relevant to the need for the chemical restraint;

4. the reasons the chemical restraint is necessary;

5. the information (if any) provided to the practitioner that informed the decision to prescribe the medication for the purpose of using the chemical restraint;

6. that the approved provider is satisfied that the practitioner obtained informed consent to the prescribing of the medication;

7. the details of the prescription for the prescribed medication, including its name, dosage and when it may be used;

8. a description of any engagement with persons other than the practitioner in relation to the use of the chemical restraint;

9. a description of any engagement with external support services (for example, dementia support specialists) in relation to the assessments;

3. the use of the medication for the purpose of using the chemical restraint is in accordance with the prescription mentioned in subparagraph (b)(vii).

27. A restrictive practice can only be used if informed consent to the restrictive practice, including how it is to be used (duration, frequency and intended outcome), has been given by the “care recipient”, or if the care recipient lacks the capacity to give that consent—the “restrictive practices substitute decision-maker for the restrictive practice”: the Principles, s 15FA(1)(f). Section 5B(1) of the Principles sets out the meaning of “restrictive practices substitute decision-maker” .

28. In NSW, the following people are “restrictive practices substitute decision-makers” and are authorised to give consent to the use of a restrictive practice:

1. a guardian appointed by the Tribunal under a guardianship order and given the authority to consent to or to withhold consent to the use of restrictive practices for the subject person: see JUW [2023] NSWCATGD 3 at [23]-[29];

2. an enduring guardian appointed by a person under Pt 2 of the Act and given authority to consent to or withhold consent to the use of restrictive practices: see SKN [2023] NSWCATGD 16 at [20]-[22].

What did the Tribunal have to decide?

29. Having regard to the increased legislative and regulatory framework around the use of restrictive practices, it is not necessary in all cases for the Tribunal to closely scrutinise the proposed use of restrictive practices. Whether the Tribunal undertakes this level of assessment is a matter for the Tribunal to consider in each particular case in the exercise of its protective jurisdiction. In all cases involving proposed restrictive practices, however, the Tribunal is required to consider whether there is a need for a decision to be made by a guardian regarding the use of restrictive practices, and if so, who should be appointed to make such decisions. Thereafter it is ordinarily a matter for the appointed guardian, in compliance with their obligations under any conditions imposed by the Tribunal (which in practice reflect the requirements under the Principles) to either provide consent or withhold consent to the use of any proposed restrictive practices.

29. In the current matter however, in circumstances where there is a dispute as to whether the proposed practice actually constitutes a restrictive practice, it is appropriate for the Tribunal to determine whether the use of Risperidone for the management of BPSD constitutes a chemical restraint. Accordingly, the Tribunal must consider:

1. Whether the proposed administration of Risperidone is for the treatment of, or to enable treatment of, a diagnosed mental disorder; and,

2. If not, whether the proposed administration of Risperidone is for the primary purpose of influencing a care recipient’s behaviour.

31. To answer the first of these questions, the Tribunal is required to consider whether BPSD is appropriately characterised as “a diagnosed mental disorder”, noting that there is often conflation in arguments advanced before the Tribunal as to whether Risperidone is being used to treat the primary diagnosis of dementia, or the secondary behavioural and psychological symptoms associated with dementia.

Is BPSD a diagnosed mental disorder?

32. The term “dementia” is not defined in the Diagnostic and Statistical Manual 5^th Edition (DSM-V). Rather, it is a colloquial term used to refer to the diagnosis of what is formally known as “major neurocognitive disorder”, of which there are a number of possible aetiologies, including Alzheimer’s dementia, vascular dementia, frontotemporal dementia, Lewy body dementia, and Parkinson disease, amongst others.

33. According to Dementia Australia:

“There is currently no known medication that can cure dementia. But medication can treat some of the symptoms that come with different forms of dementia. They can also help with some of the conditions that come along with dementia…” ^[1]

1. Dementia Australia, “Treatment and Management of Dementia”

34. BPSD is not defined in the DSM-V. According to NSW Health, “BPSD is not a specific diagnosis, more a descriptive term that highlights an important clinical dimension of dementia. BPSD is a collection of observed behaviours and psychological symptoms that tend to occur in clusters”: NSW Ministry of Health, Assessment and Management of Behaviours and Psychological Symptoms associated with Dementia (BPSD): A Handbook for NSW Health Clinicians providing services for people experiencing BPSD, (December 2022) at 9.

35. The Australian Institute of Health and Welfare outlines that “behaviours and psychological symptoms of dementia (BPSD) refer to a range of non-cognitive symptoms common amongst people with dementia”. ^[2]

    2. Australian Institute of Health and Welfare, “Dementia in Australia” (Web report)

36. The Tribunal finds that BPSD is not a “diagnosed mental disorder” for the purpose of the Principles. Rather, it is an umbrella term used to refer to a number of observed behavioural and psychological symptoms commonly experienced by people who live with dementia.

In the context of BPSD, is Risperidone used for the primary purpose of influencing a care recipient’s behaviour?

37. Whether or not Risperidone is used for the primary purpose of influencing a person’s behaviour is a factual determination that must be made in the circumstances of an individual case, as it will be subject to the clinical indicators for the medication being prescribed.

38. Risperidone is an atypical anti-psychotic medication. According to the Therapeutic Goods Administration, Risperidone is indicated for:

1. the treatment of schizophrenia and related psychoses;

2. the short-term treatment of acute mania associated with Bipolar 1 Disorder;

3. the treatment (up to 12 weeks) of psychotic symptoms, or persistent agitation or aggression unresponsive to non-pharmacological approaches in patients with moderate to severe dementia of the Alzheimer’s type;

4. the treatment of conduct and other disruptive behaviour disorders in children (over five years), adolescents and adults with sub-average intellectual functioning or mental retardation in whom destructive behaviours (e.g., aggression, impulsivity and self-injurious behaviours) are prominent; and

5. the treatment of behavioural disorders associated with autism in children and adolescents. ^[3]

   3. Australian Government Department of Health and Aged Care “Guidance and resources: Risperidone BNM, Rixadone”

39. According to the Australian Institute of Health and Welfare:

“Antipsychotic medicines should only be prescribed to people with dementia following the unsuccessful attempt of managing symptoms of dementia using non-pharmacological treatments, as the combined use of dementia-specific and antipsychotic medicine increases the risk of serious adverse effects, including death. This risk increases over longer periods of use… Risperidone, which is a type of antipsychotic medicine, is the only antipsychotic currently listed on the PBS that may be prescribed to a person with dementia who displays persistent behavioural disturbances such as psychotic symptoms, restlessness and aggression (known as either ‘changed behaviours’ or ‘behavioural and psychological symptoms of dementia’ (BPSD)).” ^[4]

4. Australian Institute of Health and Welfare, “Dementia in Australia” (Web report)

40. As outlined above, BPSD is not a diagnosed mental disorder, but rather an umbrella term used to refer to a number of observed behavioural and psychological symptoms commonly experienced by people who live with dementia. In these circumstances, any treatment purporting to be treatment for a diagnosis of BPSD must be considered as treatment for the purpose of managing identified behavioural and psychological symptoms, and therefore, for the primary purpose of influencing a person’s behaviour.

41. The Tribunal cannot accept an argument that Risperidone is prescribed for the treatment of a primary diagnosis of dementia. The clinical indicators for a person being prescribed Risperidone against a background diagnosis of dementia relate to persistent behavioural disturbances, and only as a last resort after all non-pharmacological measures have been exhausted. When prescribed Risperidone in the context of a diagnosis of dementia, specifically in the context of BPSD (and absent other diagnosed mental disturbances), the only available finding open to the Tribunal is that Risperidone is prescribed for the primary purpose of managing a person’s behaviour rather than the treatment of a diagnosed mental disorder.

42. In this context, the Tribunal finds that the use of Risperidone for the management of BPSD for patients in residential aged care, in circumstances where there are no other diagnosed mental disturbances which clinically indicate a prescription for anti-psychotic medication, is for the primary purpose of influencing the person’s behaviours rather than for the treatment of a diagnosed mental condition, and accordingly, the treatment is appropriately characterised as a chemical restraint under the Principles. The appointment of a guardian is required for the purpose of consenting (or withholding consent) to such practices.

43. The Tribunal is often presented with imperfect evidence. In patients with a diagnosis of dementia with notable behavioural disturbances, and in the absence of any evidence of diagnoses of alternative mental disturbances which would clinically warrant the administration of anti-psychotic medication, the Tribunal will often be required to take a prudent and careful approach in identifying the proposed treatment as a restrictive practice in the form of chemical restraint. This approach is consistent with the Tribunal’s requirement to observe the principles under s 4 of the Act, and specifically, for the interests and welfare of the subject person to be paramount. This approach ensures that in any case where a person in residential aged care is purported to be subject to chemical restraints, the appropriate regulatory regimes are complied with as an important safeguard for the interests of the person. If the Tribunal’s approach is incorrect, and the Tribunal has improperly identified a practice as a chemical restraint, there is no detriment to the person in appointing a guardian with a restrictive practices function in circumstances where the appointed guardian simply will not be required to make a decision under such function.

44. As a matter of general practice, when faced with a matter where a person in residential aged care is prescribed Risperidone against a background of a dementia diagnosis, it will often signal to the Tribunal that there are likely restrictive practices in use. In the event that Risperidone is prescribed for the treatment of other diagnosed mental disorders, clear and unambiguous evidence should be presented to the Tribunal as to the clinical indicators for such medication to allow the Tribunal to contraindicate the use of chemical restraints.

45. Whilst the above discussion is of more general application, for the avoidance of doubt in the current matter, the Tribunal forms the view that the use of Risperidone is not for the primary purpose of treating a diagnosed mental disorder. Rather, it is for the primary purpose of influencing behaviour and constitutes a regulated restrictive practice for which the appointment of a guardian is required. The evidence to ground this finding is discussed elsewhere in these Reasons for Decision.

REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

46. On reviewing the current guardianship order the Tribunal may renew the order, or renew and vary the order, or determine that the order is to lapse.

47. The questions to be considered by the Tribunal are:

1. Is Brenda someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

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

3. Who should be the guardian and how long should the order last?

Is Brenda someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

48. Section 14 of the Act provides that we may make a guardianship order for a person if we are satisfied that the person is “a person in need of a guardian”.

49. A person in need of a guardian is “a person who, because of a disability, is totally or partially incapable of managing their person”: the Act, s 3(1). The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation: the Act, s 3(2). Commonly, we consider the person’s ability to make important personal, health and lifestyle decisions; the ability to make such decisions being a major life activity that impacts on the person’s ability to function normally in the community with others.

50. When the previous order was made, the Tribunal found that Brenda is a person in need of a guardian as a consequence of an advanced cognitive impairment as a result of vascular dementia.

51. On review, the Tribunal was provided with a number of medical reports, many of which pre-date the Tribunal’s previous order. Those reports are consistent with the Tribunal’s previous findings, save and except for multiple references to Brenda’s dementia being of mixed aetiology, namely vascular and Alzheimer’s dementia.

52. In oral evidence the Tribunal was informed that Brenda’s cognitive and functional abilities have significantly declined since the last order was made, to the extent that Brenda no longer has the capacity to engage in conversation. It was an agreed position at Hearing that there was no evidence to disturb the Tribunal’s previous findings, and that Brenda’s condition is quite progressed.

53. The Tribunal was satisfied that Brenda continues to be a person in need of a guardian. Accordingly, she is a person for whom a further guardianship order could be made.

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

54. Section 14(2) of the Act outlines a number of equally important factors for us to consider and balance in the exercise of our discretion. 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 Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3). The Tribunal has had regard to each of the mandatory s 14(2) factors, which are only referred to herein to the extent that they are of particular relevance to the decision made by the Tribunal.

55. The Tribunal was informed that Brenda’s accommodation is currently a respite placement, and that decisions still need to be made as to whether Brenda will remain in her current RACF on a permanent basis. Vanessa informed the Tribunal that although it is possible that Brenda will remain in the current facility, where Vanessa describes the care provided to Brenda as “quite good”, she would still like to consider the possibility of locating a RACF closer to her. It was an agreed position at Hearing that there remains a need for a guardian to be appointed to make necessary and appropriate decisions regarding Brenda’s future accommodation. It was also an agreed position, in circumstances where there are no plans for Brenda to return to live in the community, that there is no longer a need for a guardian to make decisions under a services function.

56. As discussed above, Brenda is subject to restrictive practices, and under the relevant regulatory regime there is a need for a guardian to be appointed to consent, or withhold consent, to the use of restrictive practices. Aside from the use of chemical restraints, the Tribunal was informed that Brenda is also subject to environmental restraints. Brenda is placed in a memory support unit with locked doors. She does not have freedom of movement to come and go from the RACF as she pleases, and accordingly her placement in a memory support unit constitutes an environmental restraint which requires the consent of a guardian with a restrictive practices function. Although not specifically raised as an issue at Hearing, the medical reports available to the Tribunal also raise concerns about Pica (an eating disorder in which a person eats things not usually considered food), with Brenda having been known to consume non-edible items such as soap. It is foreseeable that following appropriate monitoring and documentation of these concerns, further environmental restraints may need to be implemented.

57. The material before the Tribunal indicates that Brenda’s hospitalisations have primarily been in relation to behavioural disturbances associated with her BPSD, however, it is noted that Brenda has a number of other medical conditions for which she obtains treatment and is prescribed regular medications. It is reported that “[Brenda] has been dedicated to natural therapies her whole live (sic). As part of who she is she avoided traditional medical intervention where she could and did not take medicine”: Management Plan submitted to the Tribunal on 26 July 2024, author and date not identified on the face of the document. It is further reported that Brenda is administered her medications covertly, with regular medication crushed in sweet food, as consented to by Vanessa.

58. Section 46A of the Act provides that the Tribunal may confer on a guardian the authority to override a patient’s objections to medical or dental treatment, and that a guardian may exercise such authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient. The Tribunal is satisfied that Brenda is objecting to treatment, which necessitates the need for her medications to be administered covertly. Although Brenda’s rejection of traditional medical intervention is consistent with Brenda’s long-held beliefs, the Tribunal is satisfied, in relation to the current treatment, that as a consequence of Brenda’s advanced cognitive decline, she is unable to understand the nature of, or reason for, the treatment to which she is objecting. The Tribunal was informed that, in the first instance, behavioural strategies are implemented to attempt to encourage Brenda to become medication compliant, however there remains a regular need for Brenda’s medications to be covertly administered. In these circumstances, the Tribunal was satisfied that there is a need for a guardian to be authorised to override Brenda’s objections to treatment. Due to the need for this authority, consent to medical and dental treatment cannot be attended to informally (by Brenda’s person responsible) without a guardian being appointed with the requisite functions. Accordingly, the Tribunal decided that there is a need for a guardian to be appointed with the following functions: health care, medical/dental consent, and authority to override objections to treatment. Section 46A(2) of the Act provides that authority to override objections may only be conferred on a guardian at the request of the guardian or with the consent of the guardian. Both Vanessa and the representative from the Public Guardian indicated their consent to such authority being conferred.

59. Vanessa supported the making of a guardianship order with the functions referred to above. Brenda was unable to express any views in relation to the proposed guardianship order.

60. The Tribunal is required to have regard to the impact of a guardianship order on Brenda’s existing family relationships. As discussed in more detail below, the Tribunal notes that Vanessa’s existing appointment as Brenda’s guardian (and her previous role as Brenda’s carer) appears to be having a detrimental effect on Vanessa’s wellbeing, and consequently, on Brenda’s existing relationship with Vanessa. The Tribunal ultimately determined that the making of a guardianship order, with the Public Guardian being appointed as Brenda’s guardian, would be beneficial for Brenda’s existing relationship with Vanessa in that Vanessa could focus on being a supportive daughter rather than being tasked with making difficult decisions about Brenda’s care, many of which may be contrary to her views.

61. Ultimately, the Tribunal was satisfied that a further guardianship order should be made with the functions of accommodation, health care, medical/dental consent and restrictive practices (environmental and chemical restraints), with the guardian being authorised to override Brenda’s objections to medical and dental treatment.

Who should be the guardian and how long should the order last?

62. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or 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.

63. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, 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, [66]).

64. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

63. The Tribunal is 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.

64. The Supreme Court has held that:

“[T]he proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

67. Vanessa proposed that she be reappointed as Brenda’s guardian. She acknowledged that she had been required to make decisions that were inconsistent with Brenda’s views, however, she denied that doing so had had a detrimental impact on Brenda’s relationship with her. Vanessa made comments to the effect that “dementia patients take it out on those close to them”.

68. The professionals involved in Brenda’s care did not support Vanessa’s reappointment as Brenda’s guardian. The Home Care Provider Social Worker acknowledged that to date Vanessa has done “a phenomenal job of respecting [Brenda’s] wishes… but perhaps it is time for someone else to make decisions”.

69. The Home Care Provider Social Worker outlined concerns on behalf of Brenda’s existing service providers about Vanessa experiencing extreme carer stress. She outlined reports of Vanessa being physically assaulted by Brenda on a daily basis, and also identified concerns that Vanessa’s carer stress may have culminated in a suicide attempt, with service providers requiring welfare checks to be conducted with respect to Vanessa’s welfare.

70. The Local Health District Social Worker outlined concerns about Vanessa being unavailable to make timely and appropriate decisions regarding Brenda’s care. For example, an attempt for Brenda to be discharged to a RACF was unsuccessful in circumstances where Vanessa failed to attend the facility to execute necessary admission paperwork and was not contactable. This failed admission resulted in Brenda being refused admission and being returned to hospital pending identification of an alternative discharge destination. Ms Brie echoed the Local Health District Social Worker’s concerns, outlining that although Vanessa has been required to make difficult decisions regarding Brenda’s care, she has been unavailable and uncontactable for the purpose of implementing those decisions.

71. Vanessa told the Tribunal that the issues referred to were as a consequence of Vanessa encountering difficulties with her telephone and internet provider, where her service was not available for a period of two weeks. She denied that her availability was an ongoing issue and reported that the issues have now been resolved. Vanessa did not provide any evidence, however, of alternative steps that were taken by her to ensure that the necessary and appropriate decisions which needed to be made for Brenda could be appropriately implemented. During this period of unavailability Vanessa was not contactable, and made no attempts to contact the hospital, to facilitate Brenda’s discharge.

72. Ms Green disputed Vanessa’s assertion that the issues have been rectified. She outlined that in the relatively short period following Brenda’s admission (i.e., between her admission on 31 July 2024 and the Hearing on 9 August 2024) multiple attempts have been made by the nursing staff involved in Brenda’s care to contact Vanessa, however these calls have not been answered and Vanessa has not responded to the messages left.

73. Aside from Vanessa (and Brenda who was unable to express her views), all other participants in the Hearing, including the Separate Representative, supported the appointment of the Public Guardian as Brenda’s guardian. The rationale for this appointment was twofold. Firstly, there are concerns about the impact of Vanessa’s appointment on Brenda’s family relationships. Secondly, and perhaps more significant, is that there is a need for Brenda’s guardian to be readily contactable to ensure that timely and necessary decisions about Brenda’s care can be made and implemented.

74. The Tribunal finds that although Vanessa reports as being willing to exercise the functions of guardianship, the practical reality at this point in time is that she is unable to perform those functions. The Tribunal accepts the evidence presented by the experts that Vanessa’s appointment as Brenda’s guardian has likely had a deleterious impact on her own mental health and wellbeing, which has impaired her ability to diligently undertake the role. Brenda requires a guardian who is readily contactable and able to make timely and necessary decisions regarding her care. At this point in time, Vanessa is not able to fulfil these requirements.

75. At this point in time the Tribunal cannot be satisfied that Vanessa is able to fulfil the requirements necessary for her appointment as Brenda’s guardian. Absent a suitable private person to be appointed, the Tribunal decided to appoint the Public Guardian.

76. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. At Hearing there was general support for a longer order of up to three years being made.

77. As a consequence of the Tribunal’s decision to remove Vanessa from her appointment as Brenda’s guardian and appoint the Public Guardian, the Tribunal decided that a shorter order should be made. The rationale for this is that once Brenda’s circumstances have settled, and Vanessa has been provided the opportunity to recover from her extreme carer stress, it may be appropriate to reconsider the issue of whether Vanessa is a suitable person to be appointed as Brenda’s guardian.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

78. The questions to be considered by the Tribunal are:

1. Is Brenda incapable of managing her affairs?

2. Is there a need for another person to manage Brenda’s affairs and is it in her best interests for a financial management order to be made?

3. If so, who should be appointed financial manager?

Is Brenda incapable of managing her affairs?

79. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what they are proposing to do [58]. White J used a “rational appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:

“… [I]s to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person’s property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person’s property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].”

80. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

81. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?”

…

“[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

82. In determining whether the person is “able” in this sense, consideration may be given to:

1. past and present experience as a predictor of the future course of events;

2. support systems available to the person; and

3. the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

83. At Hearing, there was no dispute that Brenda is unable to manage her affairs.

84. Vanessa told the Tribunal that prior to the passing of her father, he provided significant assistance to Brenda in managing her affairs. Vanessa told the Tribunal that she has been providing informal support to Brenda in the management of her financial affairs for around five years, primarily with respect to attending to the payment of Brenda’s bills and other necessary expenses.

85. As discussed above, Brenda lives with significant cognitive impairment associated with her diagnoses of vascular and Alzheimer’s dementia. She has significant limitations regarding her cognitive and functional capacity. It is reported that Brenda requires full assistance with all activities of daily living.

86. The Tribunal is satisfied on the uncontested evidence that Brenda is unable to manage her affairs. She is, accordingly, a person for whom the Tribunal could make a financial management order.

Is there a need for another person to manage Brenda’s affairs and is it in her best interests for a financial management order to be made?

87. At Hearing, Vanessa informed the Tribunal that she agrees that there is a need for another person to manage Brenda’s affairs, and that it is in Brenda’s best interests for a financial management order to be made. Vanessa outlined that although she has been providing informal assistance to date, she is not recognised as a signatory on Brenda’s bank account, and she is not identified as a nominee for Centrelink purposes.

88. The Tribunal was informed that as a consequence of Brenda’s admission to a RACF, there are a number of financial and legal matters to be attended to which cannot be attended to on an informal basis. This includes attending to an income and asset assessment with Centrelink and entering into associated contracts with the RACF. It is reported that Brenda owns her own home, and it is reasonably foreseeable that in due course decisions will need to be made as to whether Brenda’s home is sold to finance the payment of a Refundable Accommodation Deposit (although it is anticipated that this decision will not need to be made immediately as Vanessa will likely be considered to be a protected person in her capacity as Brenda’s carer).

89. The Tribunal is satisfied that, on account of Brenda’s change in circumstances, it is not practicable for financial decisions to continue to be made on an informal basis. There is a need for a number of financial and legal decisions to be made by someone on Brenda’s behalf, and having regard to the nature of those decisions, they will not be able to be made without being legally authorised to do so. Accordingly, the Tribunal is satisfied that it is in Brenda’s best interests for a financial management order to be made.

Who should be appointed as financial manager?

90. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

91. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian.

92. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

93. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation, and the security provided to an estate against loss or damage.

94. The advantages of the appointment of a family member were more economic management of smaller estates (i.e., freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

95. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision-maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

96. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated at [34]:

“It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.”

97. The matters or “guidelines” that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].

98. In YJC v Public Guardian [2024] NSWCATAP 160, the Appeal Panel considered the history of the case law regarding the issue of whether the appointment of the NSW Trustee and Guardian may only be considered as a matter of “last resort” and confirmed that no such principle exists. Rather, the decision as to whether a suitable private person or the NSW Trustee and Guardian ought to be appointed as a person’s financial manager is a discretionary decision to be made by the Tribunal, with such discretion being exercised under the statutory commands of s 4 of the Act.

99. Having determined that a financial management order should be made, the Tribunal was tasked with determining whether Vanessa should be appointed as Brenda’s financial manager, as proposed by Vanessa, or whether Brenda’s estate should be committed to the management of the NSW Trustee and Guardian, as proposed by the Home Care Provider Social Worker and unanimously supported by all other participants in the Hearing, save for Vanessa (and Brenda who was unable to express a view).

100. Vanessa asserted that she was willing and able to exercise the functions of financial management. She has an understanding of the nature of Brenda’s affairs, which will allow a more personalised approach to the management of her estate.

101. When considering the appointment of a private financial manager, the Tribunal routinely makes enquiries of a probity nature with the proposed financial manager. In discussions with the Tribunal Vanessa advised that she has not been convicted of any offences involving fraud or dishonesty, she has not been engaged in bankruptcy proceedings, and she and Brenda have no intermingling of their financial affairs (e.g. no debts owed between them or jointly owned property). There were no significant concerns regarding Vanessa’s proposed appointment raised from a probity perspective.

102. The Separate Representative identified concerns about a potential conflict of interest in Vanessa’s appointment as Brenda’s financial manager. He acknowledged, however, that this conflict may be better characterised as “potential for conflict” rather than an actual current conflict. This arises as a consequence of Vanessa continuing to reside in Brenda’s property, and concerns about whether, in due course, Vanessa would be agreeable to taking steps to sell Brenda’s property to fund the payment of a Refundable Accommodation Deposit.

103. It is noted that there were no identified concerns raised by any of the service providers involved in Brenda’s care regarding concerns about the manner in which Vanessa has been informally managing Brenda’s affairs. Specifically, there are no concerns that Brenda has been subject to elder abuse or financial exploitation.

104. In proposing the appointment of the NSW Trustee and Guardian, the Home Care Provider Social Worker echoed the concerns identified with respect to Vanessa’s suitability to be appointed as guardian regarding her suitability to be appointed as financial manager. That is, Vanessa’s unavailability to be contacted to make necessary decisions for Brenda, including in relation to her discharge to a RACF. The Home Care Provider Social Worker proposed that an independent financial manager be appointed to ensure that appropriate and timely decisions are made regarding Brenda’s financial affairs.

105. The Tribunal is satisfied that the communication difficulties with Vanessa in recent times are likely to be indicative of Vanessa’s burnout and carer stress rather than being attributable to technical difficulties as asserted by Vanessa. Appointment as financial manager carries with it additional stressors, including the legislative mandate to operate under the authorities and directions of the NSW Trustee and Guardian, as well as navigating financial institutions, Centrelink, and taking steps (if required) to attend to the sale of Brenda’s property.

106. In all of the circumstances, the Tribunal was satisfied that it would be consistent with Brenda’s interests to prioritise and preserve her existing family relationships. This can be achieved by ensuring that Vanessa is able to obtain any practical supports she may require for herself, and being available to Brenda in her capacity as a supportive and loving daughter. Brenda’s interests are better served at this point in time by removing the burden of financial management from Vanessa and committing the management of Brenda’s estate to the NSW Trustee and Guardian who are well-equipped to undertake the tasks at hand. This decision also has the practical effect of ensuring that any potential conflicts of interest, as identified by the Separate Representative, are avoided.

107. In all of the circumstances, the Tribunal decided that Brenda’s estate should be committed to the management of the NSW Trustee and Guardian.

**********

Endnotes

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: 08 May 2025