DXL

[2018] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DXL [2018] NSWCATGD 37

Hearing dates:

10 September 2018

Date of orders:

10 September 2018

Decision date:

10 September 2018

Jurisdiction:

Guardianship Division

Before:

B L Hughes, Senior Member (Legal)

Decision:

The guardianship order for DXL made on 13 July 2017 has been reviewed. The order now is as follows:

 

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

 

2. This is a continuing guardianship order for a period
of two years from 13 July 2017.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Accommodation

 

To decide where DXL may reside.

 

b) Health care

 

To decide what health care DXL may receive.

 

c) Medical/Dental consent

 

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

 

d) Services

 

To make decisions about services to be provided to DXL.

 

e) Restrictive Practices

 

To make decisions about the following restrictive practices:

 

(i) the restriction of DXL’s freedom of movement

 

(ii) the administration of psychotropic medication to
modify his behaviour

 

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian may only consent to:

 

i) Restriction of DXL’s freedom of movement;

 

ii) The administration of psychotropic medication;

 to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program including strategies to ensure that he has reasonable opportunities to access the community.

Catchwords:

GUARDIANSHIP – requested review of guardianship order – appointment of private guardian – order renewed and varied – considerations for length of order – functions of guardian

 

RESTRICTIVE PRACTICES – nature of restrictive practices – chemical restraint – environmental restraint – whether practice is a restrictive practice

  WORDS AND PHRASES – Non-Purposeful Risk

Legislation Cited:

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

005: Requested Review of Guardianship Order

  DXL (the person)
IZL (applicant)
XCF (appointed guardian)
KBF (joined party)

Representation:

Nil

File Number(s):

NCAT 2016/00393158

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. DXL is a 57-year-old man who lives in shared rental accommodation in regional NSW. He remains close to his former wife, KBF, who also lives in regional NSW. DXL and KBF have two children, XCF who is now residing overseas, and OBF, who also lives in regional NSW.

2. On 4 July 2016, XCF was appointed as guardian with the functions of accommodation, healthcare, medical and dental consent and services. KBF was appointed as financial manager subject to the authorities and directions of the NSW Trustee and Guardian.

3. The guardianship order was reviewed and renewed for a period of two years on 13 July 2017. XCF was reappointed with the function of accommodation only.

4. On 12 July 2018, the Tribunal received a request from IZL seeking a review of the guardianship order. IZL is DXL’s support coordinator through the National Disability Insurance Scheme (NDIS).

The hearing

5. 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.]

What did the Tribunal have to decide?

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

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

• Is DXL 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 DXL 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?

8. 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/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” (s 3(1) of the Guardianship Act). 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 (s 3(2) of the Guardianship Act).

9. When the previous order was made, the Tribunal found that as a result of Wernicke’s encephalopathy and Korsakoff’s Syndrome, DXL was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue.

10. The Tribunal is satisfied that DXL 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?

11. 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, and

2. the person’s spouse, and

3. the person’s carer and

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

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

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

12. 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 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) which provides:

4 General Principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

13. DXL attended the hearing however was unable to participate meaningfully in the hearing or to provide his views due to the nature of his disabilities.

14. XCF was overseas and unable to participate in the hearing however the Tribunal was told that he strongly supported the variation of the order and for his appointment as guardian to be revoked so that his mother could be appointed in his place as he will be living overseas for the foreseeable future. The Tribunal was told that OBF was unable to participate in the hearing but also supported the variation of the guardianship order.

15. IZL told the Tribunal that DXL’s care needs exceed the level available to him in his current placement. His NDIS funding does not reflect his needs and is grossly inadequate, he now requires 24 hour / 7 days a week support from two staff. DXL’s mobility has declined, and he needs handrails to mobilise, so will have to find a placement that either has handrails already in place or that can be adapted to include them. DXL is extremely frail and unsteady on his feet, needing two carers to help him mobilise at the hearing. IZL said that a decision is needed about DXL’s accommodation and that service decisions will have to be made to ensure that DXL’s care needs are met.

16. IZL said that she is seeking funding from the NDIS for the development and implementation of a behaviour support plan as there is now a need for restrictive practices to be used. She said that as a result of the deterioration in his cognition, DXL attempts to remove his seatbelt and get out of vehicles. His home is deadlocked to prevent him from leaving the premises of his own volition. DXL is unable to appreciate his frailty and impaired mobility. DXL has developed sexualised behaviours and is to be reviewed by a forensic psychiatrist to see if there is a need for the introduction of medications to minimise these behaviours and reduce the risk of harm to DXL and others.

17. The use of a seat belt buckle cover is a specific exclusion from being considered a restrictive practice as DXL’s actions are deemed to fall into the category of non-purposeful risk. The Tribunal considered that a guardian should be appointed to consider whether to consent to the restriction of DXL’s freedom of movement by the locking of doors. Unless the administration of psychotropic medications to alter DXL’s behaviour is for the treatment of a mental condition or illness, it may be considered chemical restraint requiring the consent of a guardian with a restrictive practice function. As the Tribunal was told that a forensic psychiatry review is imminent the Tribunal considered that it would be prudent to provide a guardian with the authority to consent to psychotropic medication under a restrictive practice function. Ordinarily the Tribunal would be reluctant to confer such functions in the absence of a behaviour support plan and clearer information about specific restrictive practices and how they are to be implemented. The Tribunal accepted however that there is an immediate need for a guardian to be appointed with these functions for the protection of DXL. Whilst his sexualised behaviour is untreated DXL has been effectively housebound to prevent him coming to harm through misadventure.

18. IZL said that DXL’s health and medical conditions are complex. On average he has a medical appointment each fortnight and there is no one who is recognised as person responsible. KBF has faced resistance from medical practitioners as she is DXL’s ex-wife and service providers have said that they require an identified person to provide consent to medical and dental treatment. The Tribunal considered that after she has been initially appointed as guardian with medical and dental functions, KBF may be recognised as person responsible for DXL. Similarly, being appointed as guardian with a services function will made it clear to the National Disability Insurance Agency (NDIA) that KBF, DXL’s ex-wife, should be accepted as his representative in NDIA planning meetings in the future.

19. There were no specific cultural or linguistic issues relevant to this matter and the Tribunal considered that DXL’s family relationships would not be impacted by the making of a further order. There are no informal mechanisms for these decisions to be made at the present time.

20. The Tribunal decided that a guardian should be appointed with the functions of accommodation, medical and dental treatment, health care, restrictive practices and services. The services function will enable the guardian to provide or withhold consent to a behaviour support plan and to advocate on DXL’s behalf with the NDIA.

Who should be appointed as the guardian?

21. The Tribunal was told by IZL that the current guardian, XCF, has moved overseas indefinitely and wishes to relinquish his appointment so that decisions can be made by someone living closer to DXL. IZL proposed that KBF be appointed as guardian for DXL. KBF is DXL’s financial manager.

22. KBF has been consistently involved in communicating with DXL’s group home and is involved and aware of all aspects of his life. Although the couple are divorced, KBF said that DXL remains her best friend. The appointment of KBF was supported by the current guardian, XCF, and DXL’s daughter, OBF. IZL and DXL’s support workers supported her appointment as guardian. KBF impressed the Tribunal as being a willing and capable guardian for DXL who would make decisions in his best interests.

23. The Tribunal was satisfied that KBF meets the requirements of the Guardianship Act and appointed her as guardian.

How long should the order last?

24. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. The Tribunal decided not to alter the term of the order being reviewed at the request of IZL. The basis for this is to ensure that a behaviour support plan is in place and so to provide further clarity as to the restricted practices, if any, that are being implemented. More evidence may be available in respect of any major medications, if any, that are prescribed to DXL. It may be that if a further order is required it need not be so restrictive. Accordingly, the order is for a period of two years from 13 July 2017.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 February 2019