BZL

[2020] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BZL [2020] NSWCATGD 2

Hearing dates:

11 February 2020

Date of orders:

11 February 2020

Decision date:

11 February 2020

Jurisdiction:

Guardianship Division

Before:

J D’Arcy, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)

Decision:

The guardianship order for BZL made on 6 March 2019 has been reviewed. The order now is as follows:

 

1. JAL of [Address removed for publication.] is appointed as the guardian.

 

2. This is a continuing guardianship order for a period of 12 months from 11 February 2020.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Accommodation

 

To decide where BZL may reside.

 

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

 

i) take BZL to a place approved by the guardian.

 

ii) keep them at that place.

 

iii) return them to that place should they leave it.

 

c) Health care

 

To decide what health care BZL may receive.

 

d) Medical/Dental consent

 

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

 

e) Services

 

To make decisions about services to be provided to BZL.

 

f) Restrictive Practices

 

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

 

1. Chemical restraint (PRN Lorazepam)
2. Environmental restraint (access to community, access to knives)

  

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

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

 

(i) as a last resort to prevent BZL 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 BZL, 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 – review of guardianship order – end of term review of guardianship order – whether guardianship order should be renewed – where subject person is at risk of absconding from group home – where subject person exhibits challenging behaviours – restrictive practices – chemical restraint – environmental restraint – whether use of motion sensor is a restrictive practice – guardianship order renewed – order made – private guardian appointed.

Legislation Cited:

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

  BZL (the person)
JAL (appointed guardian, carer)
NSW Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00003675

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. This is a statutory review of the guardianship order that was made for Mr BZL on 6 March 2019 when his mother, JAL, was appointed as his guardian for 12 months to make decisions about his accommodation (authorise others), health care, services and restrictive practices.

2. BZL is 19-years-old and lives in supported accommodation in West Sydney managed by a disability service provider.

3. BZL is reported to have been diagnosed with autism spectrum disorder.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

5. The first guardianship order for BZL was made on 20 February 2019 when his mother was appointed as his guardian to make decisions about accommodation (authorise others), health care and services.

6. An urgent review of that order was requested six days after it was made by the original applicant; and on 6 March 2019 the order was reviewed and varied to include a restrictive practices function. The guardian and other decision making functions remained unchanged.

What did the Tribunal have to decide?

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

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

• Is Mr BZL someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

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

9. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: Guardianship Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

10. When the first order was made, BZL was a patient in a mental health centre and medical reports were provided by two psychiatric registrars, who made diagnoses of mild-moderate intellectual disorder and autism spectrum disorder with significant anxiety and low frustration tolerance. The Tribunal found that BZL had a disability being autism spectrum disorder and was unable to make important life decisions. There is no new medical evidence before the Tribunal about this issue.

11. The Tribunal is satisfied that BZL continues to have a disability which prevents him making important life decisions. He remains a person for whom the Tribunal could make a further guardianship order.

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

12. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer;

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

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.

13. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

14. JAL requested that the order made on 6 March 2019 be renewed and that she be reappointed as guardian to make decisions about her son’s accommodation (authorise others), health care, services, consent to medical and dental treatment and restrictive practices.

15. Ms Z, psychologist at an allied health care practice, who prepared BZL’s Positive Behaviour Support Plan (PBSP) and Mr Y, Acting Program Manager of the house in which BZL lives, both supported JAL’s request.

16. JAL explained that although she would like to have her son live with her at home, she is no longer able to care for him. He has only recently moved into his current house and issues with suitable co-residents are still being managed. BZL desperately wants to return home to live with her and his brother, so absconding from the house is still a live issue. She explained that without a coercive element to the accommodation decision-making function she would not be able to ensure that her son could safely be returned to the home.

17. JAL further explained that BZL has regular reviews with his general practitioner, psychiatrist and dentist. He is prescribed chlorpromazine, citalopram, clonazepam and clonidine and is given lorazepam as a PRN medication. His medications require him to have regular blood and liver function tests. In the last 12 months she has consented to him consulting with a dietician and occupational therapist and he is soon to commence physiotherapy. He needs more funding under his National Disability Insurance Scheme (NDIS) plan for additional one-to-one care at his group home. Restrictive practices are in place to keep him safe.

18. Ms Z confirmed that BZL was not settled in his current accommodation due to friction and incidents with his housemate. There were still concerns that he would abscond from his house and refuse to return.

19. In relation to the restrictive practices Ms Z described the following practices:

• BZL has restricted access to the community. Windows and doors are locked and in the community his mentor will keep him in his line of sight. A sensor device has been installed on the stairs outside of the rooms of the two residents. It is an infrared device which emits a beeping sound when BZL or his co-resident leave their rooms and enter the stairwell. The device does not record or collect information and the purpose of the device is to alert staff who reside in in the downstairs rooms that someone is in the stairwell. Ms Z explained in the PBSP that these restrictive practices are needed because previous placements had broken down due to incidents of absconding. In his attempts to abscond BZL can damage property, which poses a risk to himself and others. He is a vulnerable member of the community and would be at risk if he tried to travel alone to his mother’s home from an unfamiliar area.

• BZL has restricted access to knives, including butter knives because of his frequent incidents of physical aggression towards staff. Ms Z explained that this restrictive practice is based on a recent escalation in BZL’s aggressive behaviour. In the transition to residing in his current accommodation he has made threats to stab one staff member and has held a butter knife in a threatening manner.

• BZL has been prescribed lorazepam to be given on a PRN basis to help de-escalate his harmful behaviours when other strategies are ineffective. Ms Z explained that the use of PRN medication is based on advice from staff and doctors during BZL’s most recent hospitalisation with the aim of supporting him to manage his behaviours and to reduce the risks associated with behaviours of concern.

20. Ms Z explained that due to the ongoing nature of aggressive incidents there are no fadeout policies in place for the restrictive practices at the present time.

21. Ms Z supported the need for further NDIS funding to allow her to be involved with BZL on a more proactive basis.

22. Mr Y was unable to provide any further information because he had only recently taken up his role.

23. BZL participated in the hearing in a lively and engaging manner. He clearly indicated to the Tribunal that his greatest wish was to return home to live with his mother and that absconding to do so was still in his mind. He also described his poor relationship with his co-resident and the frustration he experiences in the group home.

24. The Tribunal found that the evidence from JAL and Ms Z consistently indicated the ongoing need for a guardianship order because BZL has not settled in his new home and there are a number of outstanding issues which still need to be addressed; and those issues could not be addressed without a guardianship order. In addition, he is prescribed major medications and restrictive practices are in place.

25. The guardian should be authorised to have the following decision making functions:

• Accommodation (authorise others) – BZL has only moved into his accommodation in May 2019. He is not yet settled and final decisions have not been made about a compatible co-resident. BZL wants to return to live at home with his mother and there are concerns that he will abscond to do so. It was apparent from his behaviour and attitude in the hearing that he would not willingly return to the group home. Thus it would be necessary to authorise others to return him home and keep him there; and to take him to any new accommodation if any changes were made in his current accommodation.

• Health care – BZL has regular reviews with his general practitioner, a psychiatrist and a dentist. He requires regular blood tests and liver function tests. He is soon to commence physiotherapy and consent has been given for him to consult a dietician and occupational therapist. There is an ongoing need for a guardian to be able to make decisions about his health care needs.

• Consent to medical and dental treatment – BZL is prescribed major medications which require consent from a guardian. Until recently he has been wearing braces and now wears a retainer which requires maintenance and regular dental reviews.

• Services – BZL receives funding through the NDIS and a requested review will be undertaken in the near future. According to JAL and Ms Z his funding is insufficient to meet his current needs and a review of his plan has been requested. An occupational therapist has provided a report justifying the need for further NDIS funding to promote his independence and his long term safety.

• Restrictive practices – On the basis of Ms Z’s evidence there is a need for the use of environmental restraints (access to the community and knives) and chemical restraints (the use of lorazepam on a PRN basis).

26. Rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) states that the restrictive practice is a regulated restrictive practice if it involves an environmental restraint which restricts a person’s free access to all parts of their environment, including items or activities.

27. The Tribunal found that the use of a sensor to monitor BZL’s movements on the stairwell was not an environmental restraint. The monitoring device is an infrared scanner which does not record or collect any information. It does not restrict anyone’s movement or access to any part of the house. It does not prevent BZL from accessing the stairwell and the rooms below the stairwell. The purpose of the device is to alert staff members to the residents’ movements around the house, especially at night.

Who should be appointed as the guardian?

28. The Tribunal was satisfied that JAL continues to meet the requirements of the Act and should be re-appointed as her son’s guardian. It was apparent in the hearing that she has a very close and loving relationship with BZL and is involved in all aspects of his life. She is a concerned and loving mother who clearly acts in her son’s interests to promote the best quality of life for him.

29. Ms Z and Mr Y both observed that JAL was devoted to her son’s care and best placed to make decisions for him.

30. BZL indicated very clearly to the Tribunal that he wanted his mother to make decisions on his behalf.

31. The Tribunal therefore appointed JAL as BZL’s guardian.

How long should the order last?

32. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

33. The Tribunal decided to make an order for 12 months because of the highly restrictive nature of the order and because BZL remains unsettled in his current accommodation. It may well be that after a period of 12 months a much less restrictive order is warranted.

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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: 25 February 2020