DZF

[2018] NSWCATGD 30

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DZF [2018] NSWCATGD 30
Hearing dates:	21 November 2018
Date of orders:	28 November 2018
Decision date:	28 November 2018
Jurisdiction:	Guardianship Division
Before:	V Massey, Senior Member (Legal) W Longley, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	The guardianship application is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – reason to make order – possibility for decisions to be made on an informal basis – functions of guardian – restrictive practices – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – mechanical restraint – environmental restraint – whether practice is a restrictive practice – application dismissed   WORDS AND PHRASES – “person responsible” – “restrictive practices”
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 3E(1), 4, 4(a)–(d) 14, 14(2), 33A(4), 33A(4)(d), 40, 46(4) National Disability Insurance Scheme Act 2013 (Cth), ss 9, 73H, 209 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:	001: Guardianship Application   DZF (the person) NMF (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2018/00302152
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship in relation to DZF made by NMF.

Background

2. DZF is a 31-year-old single man who lives in a supported group home in Northern Sydney managed by a disability service provider.

3. His parents are NMF and FAF. He has a sister, NYF, and a brother, KBF.

4. On 4 October 2018, the Tribunal received an application for the appointment of a guardian for DZF. The applicant is NMF. The applicant proposes that the Tribunal consider appointing her as DZF’s guardian.

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.]

Does NMF have standing to bring the application?

6. The Tribunal found that NMF has standing to make the application for a guardianship order because she is a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of DZF.

Settlement

7. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

What did the Tribunal have to decide?

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

• Is DZF 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 DZF 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?

9. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) 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 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; 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 Act).

10. The Tribunal considered a report dated 6 August 2018 prepared by Dr Y from a medical centre. The report certifies that DZF’s past medical history includes Severe Intellectual Disability with secondary Epilepsy and Cerebral Palsy. The medical evidence was unchallenged.

11. DZF’s presentation during the hearing was consistent with the medical evidence.

12. The Tribunal is satisfied from the medical evidence that DZF has a disability being a Severe Intellectual Disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

13. 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.

14. 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).

15. DZF does not communicate verbally and was unable to express his views during the hearing.

16. DZF’s mother is identified as his carer because she is one of the very caring and supportive family members who met his care needs prior to him leaving home to live in the group home.

17. No other family member participated in the hearing. The Tribunal is satisfied by the oral evidence given by NMF and the documents in evidence before the Tribunal that DZF enjoys the love and support of a close family. NMF impresses as an active and effective advocate for her son.

18. DZF lives in a group home where he has lived for the past 13 years. His parents visit him regularly and take him on outings.

19. There was no evidence of a particular cultural or linguistic environment that the Tribunal should take into account when deciding this application.

20. DZF is settled in the group home. The disability service provider has operated the home since March 2018.

21. The Tribunal notes from DZF’s Lifestyle Plan dated 16 November 2015, endorsed with some handwritten notes, that the services he needs in his home are comprehensively covered and clearly explained so that staff can ensure his safety and well-being.

22. The role of “person responsible” is recognised in the Act. The hierarchy of person responsible is set out in s 33A(4) of the Act. Relevantly the list in descending order ends with s 33A(4)(d) of that Act which identifies “a close friend or relative of the person”, as person responsible for another person. The meaning of “close friend or relative” is contained in s 3E(1) of the Act which provides:

3E Meaning of “close friend or relative”

(1)   A person is a close friend or relative of another person for the purposes of this Act if the person maintains both a close personal relationship with another person through frequent personal contact and a personal interest in the other person’s welfare. However, a person is not to be regarded as a close friend or relative if the person is receiving remuneration (whether from the other person or from some other source) for, or has a financial interest in, any services that he or she performs for the other person in relation to the person’s care.

23. Each of DZF’s parents satisfies the definition of “close friend or relative” because each of them, without remuneration for or a financial interest in the services they provide for their son, maintain a close and personal relationship with him through frequent personal contact. They have a personal interest in their son’s welfare. They are each eligible to act as person responsible for DZF.

24. There is no conflict between them and the Tribunal is confident they could make joint decisions regarding the carrying out of medical and/or dental treatment for their son in response to a request made to them in accordance with s 40 of the Act. If DZF objected to the treatment an application can be made to the Tribunal for it to consider granting consent to the proposed treatment unless his objection can be disregarded in circumstances where s 46(4) of the Act applies.

25. Section 46(4) of the Act provides:

46 Effect of consent

…

(4)   For the purposes of this section, an objection by a patient to the carrying out of proposed medical or dental treatment is to be disregarded if:

(a)   the patient has minimal or no understanding of what the treatment entails, and

(b)   the treatment will cause the patient no distress or, if it will cause the patient some distress, the distress is likely to be reasonably tolerable and only transitory.

26. DZF has an NDIS Plan which started on 28 February 2018 and will be reviewed by 28 February 2019.

27. The application for appointment of a guardian for DZF was submitted in the context of the view expressed to NMF by The disability service provider that there should be a guardian appointed for DZF, with a restrictive practices function, who could be asked to give consent to the use of a helmet to prevent DZF injuring his head.

28. NMF and the carers from the disability service provider present in the hearing gave evidence that as a means of communication DZF strikes the left side of his head with his left hand. The frequency and intensity of the striking varies in direct proportion to the level of distress DZF is experiencing at the time and the content of his communication.

29. NMF gave evidence that a neurologist had told her there is an ever present risk that DZF might cause himself a serious head injury when he strikes his head and recommended the use of a helmet to prevent injury.

30. The Tribunal was shown the helmet used. It is of a soft flexible material with padding on the left side and a chin-strap.

31. The Tribunal was told that the helmet is only used when necessary. The organisation keeps a record/data sheet of the number of times the helmet is used, for review purposes. We were also told that DZF ordinarily does not try and take off the helmet. The helmet is removed immediately DZF stops striking the side of his head. The care facility staff work quickly with DZF to identify what it is that he is trying to convey at the time.

32. The use of the helmet is a reactive strategy to protect DZF from injury used only when he tries to communicate by striking his head.

33. The use of the helmet is identified as a reactive strategy to prevent injury in a Behaviour Support Plan (the Plan) for DZF dated 27 June 2016. NMF and Ms Z, Team Leader, signed the Plan including the use of the helmet for physical restraint and Restricted Practice Authorisation.

34. The Tribunal was told that there is insufficient funding in DZF’s current NDIS Plan to review the Behaviour Support Plan. A requested urgent review of the NDIS Plan has not yet been approved.

35. NMF consents to the use of the helmet in the circumstances outlined in the Plan.

36. Carolina Gonzalez, Acting Principal Guardian for the Public Guardian participated in the hearing.

37. Ms Gonzalez submitted that what defined a restrictive practice was whether it limited the rights of the subject person to access the community or limited that person’s freedom of movement. She likened the use of the helmet to a kind of environmental restraint.

38. Ms Gonzalez distinguished between a reflex action necessary to prevent serious harm (duty of care) and a planned and frequent strategy that needs to be authorised (restrictive practice).

39. The Tribunal in exercising its protective jurisdiction is required to observe the general principles set out in s 4 of the Act which provides:

4 General principles

It is the duty of everyone exercising functions under the 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.

40. Arguably putting the helmet on DZF’s head, unless at his request and with his express permission, is counter indicated by the principles set out in ss 4 (b), (c), (d) of the Act.

41. However, in balancing the factors in s 4 of the Act, it is s 4(a) of that Act which the Tribunal feels is most relevant in this matter. The helmet is used to ensure the welfare and interests of DZF. Unless it is a restrictive practice, for which a guardian should be appointed to consider giving consent, it may be used in the promotion of DZF’s best interests as part of the duty of care exercised by those who support him.

42. The threshold question for the Tribunal is whether the use of the helmet in the circumstances summarised above is a restrictive practice.

43. Restrictive practices are not defined in the Act.

44. The Tribunal now has some guidance in how restrictive practices might be defined, provided by the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (“the Rules”), made under s 73H and s 209 of the National Disability Insurance Scheme Act 2013 (Cth) (“the Scheme Act”), which commenced on 1 July 2018. Whilst the definitions of restrictive practices contained therein are not binding on the Tribunal, they are instructive, given the process of their development and their national application.

45. The Rules’ purpose is described in their Explanatory Statement as follows: “This instrument (the Rules) is about the NDIS Commission’s role in overseeing behaviour support and the reduction and elimination of restrictive practices in the NDIS.” (Explanatory Statement page 1).

46. The Rules “…are made to set out the conditions that apply to all registered NDIS providers in relation to the use of regulated restrictive practices and behaviour support services.” (Explanatory Statement page 1) An internet search informs that the disability service provider is a registered provider under NDIS. It follows that the Rules apply to the disability service provider.

47. Rule 6 of the Rules provides:

Rules apply only to specified kinds of restrictive practices

A restrictive practice is a regulated restrictive practice if it is or involves any of the following:

(a)    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;

(b)    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;

(c)    mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;

(d)    physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.

(e)    environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities.

48. The Tribunal finds that the occasional use of a helmet, as a reaction to DZF hitting his head to communicate, for the purpose of preventing self-injury is not a regulated restrictive practice within the meaning of s 6 of the Rules. The Tribunal does not agree with the submission that the use of the helmet can be likened to an environmental restraint.

49. It follows that the Rules do not apply to the use of the helmet in the circumstances described.

50. Section 9 of the Scheme Act includes the following definition: “restrictive practice” means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.

51. The Tribunal finds that the occasional use of a helmet, as a reaction to DZF hitting his head to communicate, solely for the purpose of preventing self-injury is not a restrictive practice within the meaning of s 9 of the Scheme Act, which requires the consent of a guardian, for the following five reasons:

• Firstly, the use of the helmet as described does not restrict DZF’s freedom of movement; and

• Secondly, the use of the helmet as described does not restrict DZF’s right to continue to communicate in a way the he finds acceptable; and

• Thirdly, the primary purpose of the use of the helmet is not to control DZF’s behaviour; and

• Fourthly, the use of the helmet arises because of the duty of care that the disability service provider owes to DZF to protect him from harm.

• Fifthly, it is a practice included in a comprehensive and developing Behaviour Support Plan

52. The Tribunal notes that during the hearing DZF’s mother and the carers from the disability service provider were attentive to DZF’s needs throughout. Their practical application of the preventative strategies set out in the Behaviour Support Plan dated 16 June 2016 had the effect, inter alia, that DZF did not strike his head during the hearing.

53. The Tribunal decided on the basis of all of this evidence and its findings set out above that a guardianship order should not be made for two reasons. Firstly, the use of the helmet in the circumstances of this matter does not require the consent of a guardian and secondly because no other function requiring a substitute decision-maker was identified in the evidence.

54. Having decided that a guardianship order should not be made the Tribunal did not have to consider the other questions set out above.

**********

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: 01 February 2019