CKH

[2021] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CKH [2021] NSWCATGD 18

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

1. A guardianship order is made for CKH.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where CKH may reside.

b) Health care

To decide what health care CKH may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where CKH 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 CKH’s behaviour:

Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring CKH to an understanding of the issues and to obtain and consider his 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 CKH’s behaviour:

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

(ii) in accordance with a care and support plan that incorporates:

a) the behaviours that are being addressed by the restraints;

b) the reasons why the restraints are necessary;

c) non-pharmacological strategies in place;

d) provision for review, including by appropriate medical specialist.

Catchwords:

GUARDIANSHIP – application for a guardianship order – use of restraint in aged care – Quality of Care Principles 2014 (Cth) – restrictive practices substitute decision maker – risperidone to manage behaviour – chemical restraint – requirements of care and support plan – conditions on restrictive practices function – language barriers in aged care facility – Public Guardian appointed

Legislation Cited:

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

Quality of Care Principles 2014 (Cth), ss 4, 15FA(1)(f)(ii)

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

004: Guardianship Application

CKH (the person)
OZW (applicant)
KAN (carer)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2018/00080966

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

GUARDIANSHIP APPLICATION

1. CKH is 84 years old and lives in East Sydney, NSW, in an aged care facility.

2. On 10 April 2018 the Tribunal made a guardianship order appointing the Public Guardian for 12 months to make decisions for CKH about his accommodation, services and health care. On that date the Tribunal also made a financial management order and committed CKH’s estate to management by the NSW Trustee and Guardian.

3. The guardianship order was allowed to lapse when it was reviewed on 16 April 2019.

4. On 13 May 2021 the Tribunal received an application seeking the appointment of a guardian for CKH. The applicant was OZW, who is the General Manager of the aged care facility.

The hearing

5. Due to restrictions necessitated by the COVID-19 pandemic the Tribunal’s hearings are currently being conducted by way of telephone and, where possible, video communication.

6. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]

7. CKH participated in the hearing for a short time only and became distressed. OZW said that CKH had become distressed and was unable to return to the room for the hearing.

8. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.

9. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW) (“the Act”). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.

10. An interpreter had been arranged for CKH who is of Spanish heritage. However during the time that CKH was participating in the hearing the interpreter said that he was not able to understand CKH who seemed to be speaking a mixture of Spanish and English and complaining about “the government”.

11. We were satisfied that CKH had been provided with an opportunity to participate in the hearing and there was no indication that he would be more able to participate in an adjourned hearing. Taking this into consideration as well as taking into account the risk of further distressing CKH if he were to participate we decided to proceed with the hearing in his absence.

12. KAN was identified as a person who had previously provided services or care to CKH and therefore had been identified as a party to the proceedings. He said that he had not received the documents that were before the Tribunal but was agreeable to the hearing proceeding.

What did the Tribunal have to decide?

13. The questions which had to be decided by the Tribunal were:

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

14. Section 14 of the Act 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”: the 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: the Act, s 3(2).

15. The term “social habilitation” is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]:

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

16. A report dated 2 June 2021 by Dr Z of the geriatrician outreach service of a public hospital provides the following information:

1. CKH was initially placed at the aged care facility following discharge from hospital having accidently set fire to his home. He scored 17/29 on the Rowland Universal Dementia Assessment Scale (RUDAS) in February 2018.

2. In the two months prior to the report he had three episodes of physical aggression. On two of those occasions he hit another resident and on the other occasion he threatened a staff member.

3. During a physical examination CKH became agitated and escalated very quickly.

4. CKH has behavioural and personality symptoms of dementia on a background of Alzheimer’s and vascular dementia and a history of depression. He lacks the ability to make decisions about his health care and medical treatment and his accommodation.

17. It was uncontested that due to the extent of his dementia, CKH is not able to manage his person including making important lifestyle decisions. Taking into account the views of the participants as well as the evidence of Dr Z we were satisfied that CKH has a cognitive impairment that prevents him managing his person and that he needs assistance and supervision. He is, therefore, a person for whom the Tribunal could make a guardianship order.

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

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

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.

19. 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 is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

20. In her letter of 2 June 2021 Dr Z recommends that CKH be given a low dose of Risperidone at 4:00pm to deal with his aggression, as well as citalopram for depression. She also recommends referral to a dementia support service provider for a behaviour management plan and the appointment of a guardian to consent to medical treatment and to consider any accommodation.

21. A care plan for behaviour from the aged care facility that was devised by Mr Y, registered nurse, describes strategies to assist CKH to deal with frustration, persecutory delusions and resistance to care and also includes the recommendation by the geriatric outreach service that CKH be provided with antipsychotic and antidepressant medication.

22. OZW said that as CKH’s dementia continues to worsen he is likely to become more difficult to manage. He said that CKH is currently receiving the Citalopram prescribed by Dr Z but has not been started on the Risperidone because there has not been a guardian to consent to chemical restraint of his behaviour. He said that the facility would always attempt to manage a person’s behaviour using strategies such as diversion, movement and music but at times the resort to chemical restraint is necessary.

23. KAN said that CKH believes that he would be able to care for himself in the community but that this is not possible. He believes that part of the reason for CKH’s behaviour is frustration because he cannot be understood and because other residents harass him. KAN would like CKH to move to a different area in the aged care facility, or to a different facility.

24. In response to KAN’s comments about CKH’s accommodation, OZW said that he has made enquiries about possible placement of CKH at a facility with Spanish-speaking staff but he has not been accepted there because of his challenging behaviours.

25. We were satisfied that there may be a decision required about CKH’s accommodation and that decisions are required about his health care and medical treatment, in particular regarding his medications and strategies to address his behaviours of concern.

26. The Quality of Care Principles 2014 (Cth) (“the Principles”) most recently amended with effect from 1 July 2021 include the following:

Division 2 — Restrictive practices

15E Practices or interventions that are restrictive practices

(1) For the purposes of subsection 54-9(2) of the Act, each of the following is a restrictive practice in relation to a care recipient:

(a)    chemical restraint;

(b)    environmental restraint;

(c)    mechanical restraint;

(d)    physical restraint;

(e)    seclusion.

(2)    Chemical restraint is 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:

(a)    the treatment of, or to enable treatment of, the care recipient for:

(i)    a diagnosed mental disorder; or

(ii)    a physical illness; or

(iii)    a physical condition; or

(b)    end of life care for the care recipient.

(3)    Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.

(4)    Mechanical restraint is a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a care recipient’s movement for the primary purpose of influencing the care recipient’s behaviour, but does not include the use of a device for therapeutic or non-behavioural purposes in relation to the care recipient.

(5)    Physical restraint is a practice or intervention that:

(a)    is or involves the use of physical force to prevent, restrict or subdue movement of a care recipient’s body, or part of a care recipient’s body, for the primary purpose of influencing the care recipient’s behaviour; but

(b)    does not include the use of a hands-on technique in a reflexive way to guide or redirect the care recipient away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the care recipient.

(6)    Seclusion is a practice or intervention that is, or that involves, the solitary confinement of a care recipient in a room or a physical space at any hour of the day or night where:

(a)    voluntary exit is prevented or not facilitated; or

(b)    it is implied that voluntary exit is not permitted;

for the primary purpose of influencing the care recipient’s behaviour.

27. Section 15FA(1)(f)(ii) of the Principles provides that where a consumer is unable to provide consent to the use of a restrictive practice, consent must be provided by a restrictive practices substitute decision maker. Section 4 of the Principles defines a restrictive practices substitute decision maker as:

4 Definitions

…

restrictive practices substitute decision-maker, for a restrictive practice in relation to a care recipient, means a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:

(a)   the use of the restrictive practice in relation to the care recipient; and

(b)    if the restrictive practice is chemical restraint—the prescribing of medication for the purpose of using the chemical restraint;

…

28. We were satisfied that as CKH has been prescribed risperidone to manage his behaviour, there is a need for a guardian to consider the proposed chemical restraint of his behaviour. We were of the view that it is in the best interests of CKH that a decision about chemical restraint be made only under conditions that ensure that it is used as the last resort after appropriate assessment and is reviewed regularly. Accordingly we placed conditions on the ability of the guardian to consent to the use of the chemical restraint.

29. We were advised that CKH has no family in Australia and that KAN is his close friend. KAN was supportive of the need to make a guardianship order. There was no evidence before us to indicate that a guardianship order would adversely affect any family relationships of CKH. We were of the view that making an order providing for decisions to be made about CKH’s accommodation could promote his cultural environment by facilitating advocacy regarding possible placement in an aged care facility where Spanish was spoken more often.

30. Having reached the decisions noted above we decided to make a guardianship order authorising a guardian to make decisions for CKH about his accommodation, health care, medical/dental treatment and chemical restraint of his behaviour.

Who should be the guardian?

31. There was no private person proposed to be appointed as guardian, and we appointed the Public Guardian.

How long should the order last?

32. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made the order for 12 months because we believe it will take some time to make and implement the decisions encompassed in the order and to then review the ongoing appropriateness of the order.

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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: 19 November 2021