CXD

[2020] NSWCATGD 71

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CXD [2020] NSWCATGD 71

Hearing dates:

12 August 2020

Date of orders:

12 August 2020

Decision date:

12 August 2020

Jurisdiction:

Guardianship Division

Before:

B M Shipp, Senior Member (Legal)
M A Oxenham, General Member (Community)

Decision:

The guardianship order for CXD made on 18 November 2019 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 12 August 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where CXD may reside.

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

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

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care CXD may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to CXD.

f) Restrictive Practices

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

1. Chemical restraint

2. Environmental restraint

3. Seclusion

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring CXD 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 CXD’s behaviour:

(i) as a last resort to prevent CXD 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 CXD, 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 – restrictive practices function – patient in mental health unit – community treatment order – paranoid and persecutory delusions – resistant to medication – use of psychotropic medications – daily room searches and monitoring – use of seclusion for safety reasons – chemical restraint – environmental restraint – no private guardian available

Legislation Cited:

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

Mental Health Act 2007 (NSW)

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

National Disability Insurance Scheme Act 2013 (Cth), s 9

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Review of Guardianship Order

CXD (the person)
Public Guardian (appointed guardian)
DZA (carer)
FAD (carer)

Requested Review of Guardianship Order

CXD (the person)
Nepean Blue Mountain Local Health District (applicant)
Public Guardian (appointed guardian)
DZA (carer)

Representation:

Nil

File Number(s):

NCAT 2019/00278850

Publication restriction:

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

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order for CXD made on 18 November 2019 and renewed it for a period of 12 months. The Public Guardian was appointed as guardian with authority to make decisions about his accommodation (including authorising others), health care, medical and dental treatment, access to services, and the use of certain restrictive practice.

Background

2. CXD is a 42-year-old man with treatment-resistant schizophrenia and poly-substance abuse. His parents are DZA and FAD. He also has a brother but said to have no contact with him.

3. CXD was previously living in Housing NSW accommodation. This tenancy was terminated due to alleged damage to the property. CXD’s schizophrenia is said to sometimes cause him to behave in violent and aggressive ways.

4. CXD has had numerous admissions to hospital mental health units. His most recent admission to Nepean Hospital began in March 2019. He remains in the mental health unit pending planning for his transition to Supported Independent Living through National Disability Insurance Scheme (NDIS) funding.

5. In September 2019, the Nepean Blue Mountains Local Health District (NBMLHD) applied for the appointment of a guardian and a financial manager. On 18 November 2019, the Tribunal appointed the Public Guardian (PG) for nine months, to make decisions about CXD’s accommodation (including authorising others), health care, medical and dental treatment, services, and the use of Environmental Restraint as a restrictive practice. On the same day, the Tribunal appointed the NSW Trustee and Guardian as CXD’s financial manager.

6. In July 2020, the NBMLHD submitted a request for a review of the guardianship order, to widen the scope of the restrictive practices function to include the practice of seclusion.

7. The requested and end-of term reviews were listed together for hearing.

The hearing and participants

8. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

9. The hearing was conducted by conference phone. Participating were CXD and Ms Z (social worker at the mental health unit), Ms Y (specialist mental health clinician at a community mental health service), Ms X (NDIS support coordinator) and Ms W (on behalf of the PG).

What did the Tribunal have to decide?

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

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

• Is CXD 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 CXD 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?

12. 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 or she 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).

13. When the previous order was made, the Tribunal found that CXD has treatment resistant schizophrenia which, due to his associated extreme paranoia, delusions and auditory hallucinations, causes him to be unable to make important life decisions. For the current hearing, the Tribunal received a Positive Behaviour Support Plan (the BSP) dated July 2020 written by Ms V and Ms U of a support services provider. The information in this report is consistent with the reports relied on by the Tribunal when making the initial orders. It confirms that CXD has continued to have episodes of paranoid or persecutory delusions during his lengthy current admission. The report also notes that CXD does not accept that he has a mental illness, and he is resistant to taking medications to manage his symptoms. His symptoms have not remitted despite abstinence from substance use during this admission.

14. On the basis of the previous findings, and the more recent information, we are satisfied that CXD continues to have a disability which prevents him making important life decisions. He is 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?

15. 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; and

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.

16. 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).

17. CXD told us that he has been in hospital for 16 months. He is unsure what the plans are for him when he leaves hospital. He thinks he may be going to a group home. What he wants is “complete freedom to see my friends without someone tagging along”. He stated his health was OK, and was able to state that he was taking Clozapine, and Largactil now and then. Other participants explained to us the plans for CXD in his new home (as detailed below). CXD reacted somewhat angrily. He indicated he did not want room searches. He stated his mental health is stable, and he was clear that he does not want a guardian. CXD became more upset when there was mention of seclusion as a potential response to the escalation in his behaviours. He left the room at the hospital at that point, and did not return for the rest of the hearing.

18. The PG report was prepared by Ms S. The PG was represented by Ms W at the hearing. The PG was recommending a further 12 month order with the functions of accommodation and authorise others, health care, medical and dental treatment, restrictive practices and services. It’s reasons for these recommendations are:

1. CXD was awaiting discharge to NDIS-funded support accommodation. The PG has accepted an offer of Specialist Disability Accommodation (SDA) to be provided by a charitable organisation in a suburb in Western Sydney.

2. This move was subject to a comprehensive behaviour assessment by the support services provider, resulting in the Positive Behaviour Support Plan (PBSP) referred to above. The most important parts of this plan deal with recommendations for CXD’s successful transition to community living.

3. This PBSP contains recommendations for the use of a restrictive practice – seclusion – which is not currently included as an option in the guardianship order being reviewed. This is the reason that NBMLHD has requested a variation. The PG supports this variation in any renewed order.

4. Given CXD’s lack of insight into his mental illness and its effects, the PG believes that it needs to be empowered to authorise others including the police and/or ambulance service to transfer CXD to the approved accommodation, to keep him there, and to return him if he was to leave.

5. The PG has not been required to make decisions about CXD’s health care or medical treatment while he has been an involuntary patient under the Mental Health Act. Even if CXD is discharged under a Community Treatment Order, there are likely to be consents required for treatments which are not related to his mental health. If CXD is unable to make informed decisions about these treatments, he will continue to need a substitute decision-maker. CXD’s parents remain supportive of their son’s goals and wish to live in the community, but are not currently seeking appointment as his guardians, or wishing to undertake the role as Persons Responsible.

6. The PBSP contains recommendations for the potential use of restrictive practices, as a condition of his planned move back into the community. These include the use of environmental restraint (daily room searches and line-of-sight monitoring while in the community), chemical restraint (both routine and PRN psychotropic medication) and seclusion. The PG believes a guardian is still needed to make decisions about the use of these Restrictive Practices, and the provision of ongoing services.

19. We had the opportunity to review the PBSP. It does indeed make reference to the various Restrictive Practices referred to by the PG. They include:

1. The use of regular Diazepam for agitation;

2. The use of a range of other specified psychotropic medications on a PRN basis to help calm CXD when he is experiencing distress and cannot be otherwise calmed;

3. A daily room search, particularly for contraband, weapons and illegal substances including drugs and drug paraphernalia. CXD has stored these in the past when he delusionally believes that other people are going to hurt him;

4. Line of sight monitoring in the community, in the event that CXD leaves his unit without the support of his workers;

5. The use of Seclusion as a last resort to protect his safety, and the safety of staff and other residents if he is unable to be “de-escalated” in any other way.

20. There was general support for the reappointment of the guardian with the recommended functions. Ms Z confirmed that CXD will be discharged on a Community Treatment Order, and that he will be staying in the group home in Western Sydney with a high ratio of staffing. She notes he will be followed up by the Assertive Treatment Team.

21. Ms Y noted that CXD will be seen three times per week to monitor his mental state. Her service has been training staff about how to work with CXD.

22. Ms X (support coordinator) indicated that she is working out the exact levels of support CXD will require, particularly for his community access.

Some information about restrictive practices

23. The Guardianship Act does not define restrictive practices.

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

25. The Tribunal considers all relevant circumstances when deciding whether to give a guardian authority to decide about restrictive practices. One relevant circumstance is the implementation of the NDIS Quality and Safeguarding Framework, which underpins that Scheme.

26. Under the Framework, States and Territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners.

27. Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practices as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’.

28. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguards Commission (NDIS Commission) and are responsible for ensuring that proper consent is obtained for the use of restrictive practices.

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

Chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition;

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

Seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;

30. We are satisfied that the practices in place for CXD, or proposed in his new home, fall within the definitions of regulated restrictive practices indicated above.

Consideration

31. Based on the above evidence, we have decided that a further guardianship order should be made, with the functions of accommodation, health care, medical and dental treatment, access to services and the use of the above restrictive practices. The following factors are of most significance:

1. CXD remains on major medications for which informed consent will be required. He has a number of medical conditions that require ongoing monitoring. His parents are not presently in a position to undertake the role of Persons Responsible. CXD’s lack of insight and the effects of his underlying mental illness prevent from making informed decisions in these areas of his life.

2. CXD is about to move into new accommodation. It is likely to contain restrictions which he will object to (based on his evidence at the hearing and history of interactions with those restricting his freedoms). There is a reasonable potential for the need to consider other accommodation models, if this one is not successful. CXD’s lack of understanding and likely objection to the restrictions to be imposed on his life means there is also a need to include the authority authorise others including the Police and/or Ambulance Service to assist in implementing the accommodation decision. We would expect that this authority would only be used as a last resort, when all other reasonable interventions have been trialled.

3. There are ongoing decisions to be made about CXD’s service provision and the use of the named restrictive practise.

4. None of these decisions can be practically made in the absence of an order. This is because the decisions will need the legal authority to potentially override CXD’s objections.

Who should be appointed as the guardian?

32. As there remains no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

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

34. The Tribunal decided to make an order for 12 months because it is likely that decisions will be required under each of these functions for at least this period of time. Given the quite coercive nature of this order, it would not be appropriate to make a longer 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: 11 October 2021