DZN

[2021] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DZN [2021] NSWCATGD 10

Hearing dates:

17 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Guardianship Division

Before:

J Claridge, Senior Member (Legal)
L Porter, General Member (Community)

Decision:

The guardianship order for DZN made on 5 March 2019 has been reviewed. The order now is as follows:

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

2. This is a continuing guardianship order for a period of 12 months from 17 March 2021.

3. This order will not be reviewed at the end of the above period.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where DZN may reside.

b) Health care

To decide what health care DZN may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to DZN.

e) Restrictive Practices

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

1. Chemical restraint

f) Other Function

To make decisions concerning video surveillance inside DZN’s residence.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

(i) as a last resort to prevent DZN harming themself 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 DZN, 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 - end-of-term review of guardianship order - whether a guardianship order should be made, and what order should be made – use of video camera surveillance monitoring subject person’s eating area and bed – whether use of surveillance constitutes a restrictive practice - subject person at risk of falls – chemical restraint – guardian required to consent to use of surveillance – private guardian appointed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3)

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

Surveillance Devices Act 2007 (NSW), ss 8, 12

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

009: Review of Guardianship Order

DZN (the person)
BKP (appointed guardian)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 1990/00053021

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

Background

1. DZN, 52 years old, resides in a group home managed by a service provider.

2. It is reported that he has an intellectual disability.

3. On 5 March 2019 a guardianship order was made appointing BKP as guardian, with authority to make decisions about accommodation, services, health care and to consent to medical and dental treatment.

4. The matter before the Tribunal is an end of term statutory review.

Procedural matters

Subject person not in attendance

5. DZN did not attend the hearing. BKP advised that DZN has Down’s syndrome and early-onset Alzheimer’s dementia. He stated that his brother would not be able to understand the nature of the hearing and would not be able to make a meaningful contribution.

6. We must ensure that proceedings are conducted in a way which extends procedural fairness to all parties. This includes a requirement that parties be given a reasonable opportunity to be heard and to present their case.

7. We are also required to consider the principles in s 4 of the Guardianship Act 1987 (NSW) (“the Act”), including that the paramount concern is the welfare and interests of the person who is the subject of the proceedings.

8. We note BKP’s comments are in line with the evidence provided to the Tribunal. We also note that the hearing is being conducted by telephone due to the COVID-19 pandemic restrictions which means that the Tribunal is unable to see any reactions that DZN may have to questions asked of him.

9. We are satisfied that whilst it would be in the interests of DZN to participate in the hearing if he were able; his inability to participate due to that nature of his disability coupled with the limitations of a telephone hearing, are such that we have decided to proceed in his absence.

REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

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

11. Accordingly, we must consider:

• if we can make an order because DZN continues to have a disability which prevents him from being able to make important decisions about his life; and

• if, in the circumstances there is a need for a further guardianship order.

Is DZN someone for whom a guardianship order could be made?

12. By s 14(1) of the Act we have power to make a guardianship order for a person if we are satisfied that the person is “a person in need of a guardian”.

13. 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). The disability must restrict a person in one or more major life activity to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

14. The expression ‘social habilitation’, in the context of disability, refers to a need for services to help a person to be, or to become able to, function normally in the community with others, (P v NSW Trustee and Guardian [2015] NSWSC 579 at [303]).

15. When the order was made on 5 March 2019, a differently constituted Tribunal found that DZN had disabilities being Down’s syndrome and moderately advanced Alzheimer’s dementia and was unable to make important life decisions.

16. In Private Guardian Statement dated 2 February 2021 BKP states that his brother’s cognition has continued to decline during the term of the order. He states that his brother has become less compliant with taking medication and has a tendency to become fixated on matters.

17. BKP stated that his brother’s mobility has also decreased.

18. There is no new evidence that would alter the findings of the earlier Tribunal.

19. We are satisfied that DZN continues to have a disability which prevents him from making important life decisions. He is a person for whom we can make a further guardianship order.

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

20. Before making a guardianship order, we must have regard to a number of matters set out in s 14(2) of the Act. This requires us to consider the views of DZN and significant people in his life and have regard to family relationships and matters of cultural significance. We must also consider the practicability of services being provided to DZN without the need for the making an order.

21. Additionally, we must observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict DZN’s freedom of decision making and freedom of action as little as possible. As far as possible we should enable DZN to be self-reliant in matters relating to DZN’s personal, domestic and financial affairs. At the same time, we must also aim to protect DZN from neglect, abuse and exploitation. The paramount consideration at all times is DZN’s welfare and interests.

22. Since the last order was made BKP has made a number of decisions as guardian, including, consenting to:

• a move to new accommodation in February 2020;

• medical and dental procedures;

• various allied health care services, including exercise physiology and behaviour support; and

• services including community access.

23. BKP stated that his brother continues to need a guardian. He stated that his brother needs a guardian to make a decision about where he should live, consent to access to services and health care and to consent to medical and dental treatment and to certain restrictive practices.

24. BKP stated that he visited his brother in his new group home recently and was alarmed by what he found. He stated that his brother looked neglected with an untreated eye infection and the start of a beard. When he attempted to shave his brother both razors were filthy.

25. BKP stated that he has made a formal complaint to the National Disability Insurance Agency in relation to concerns about the service provider. He is now in the process of finding alternative accommodation for his brother, in the Australian Capital Territory (ACT) so that his brother will be closer to him. He has identified a group home managed by another service provider. His brother has visited once, and another is arranged for later in March 2021. He hopes to move his brother as soon as staff have been trained and arrangements made.

26. DZN is a participant under the National Disability Insurance Scheme (NDIS). Ongoing services decisions will need to be made as DZN’s needs change.

27. BKP stated that he is still finding it difficult to be included in discussions affecting his brother’s health. During the course of the hearing, we contacted the group home where DZN currently resides, only to be told that an appointment has been made for DZN to see a psychiatrist and then for the acting house manager to be unable to confirm this.

28. BKP wished to retain this authority for his brother.

29. In evidence is a behaviour support plan dated 2 February 2021 by Mr Z. At page 22 of the report, it states that DZN is “prescribed routine psychotropic medication for the management of behaviour”. DZN takes Lovan because he “experiences difficulties with managing his emotions effectively. This leads to agitated and aggressive behaviours.” This practice is considered to be a restrictive practice for which informed consent is required.

30. Restrictive practices are practices which restrict an individual’s rights, freedom of movement and access to objects. Restrictive practices are used where an individual engages in behaviour which might otherwise cause harm to that individual or to others.

31. Following the introduction of the NDIS certain practices called regulated restrictive practices are subject to authorisation under the Commonwealth Scheme. States and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners. Informed consent must be given to the use of restrictive practices.

32. The Guardianship Division has adopted the definitions of restrictive practices contained in the Commonwealth legislation for the NDIS.

33. 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:

1. 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.

34. The medication is stated to decrease DZN’s agitation and is unlikely to be faded out in the medium term. The plan states that the practice should be reviewed in 12 months in line with a review of plan. The use of the medication is to be monitored. The service provider has internal authorisation for the practice and BKP has provided consent in the context of medical treatment. We were satisfied that the prescribing of Lovan is to influence DZN’s behaviour and therefore requires the consent of a guardian with a restrictive practices function.

35. We note that DZN also uses a Pelican Belt which assists him to maintain stability when walking and is therefore not considered to be a mechanical restraint because of the therapeutic benefit it provides.

36. The behaviour support plan also provides that surveillance equipment is used to monitor DZN in the group home. The equipment is used for safety reasons as DZN is now very unstable on his feet and at a high risk of falling. He also has osteoporosis which increases his risk of injury if he falls.

37. It is stated that the surveillance equipment is used when staff do not have a direct line of sight to DZN. The device also allows DZN to communicate with staff and for staff to communicate back.

38. By ss 8 and 12 of the Surveillance Devices Act 2007 (NSW) (“SD Act”), it is illegal to:

• install, maintain or use a surveillance device for the purposes of capturing activity without the consent of the occupier or owner of the premises; and

• be in possession of any recording made with surveillance devices used in contravention of the SD Act.

39. In evidence is the accommodation agreement between the service provider company as service provider and BKP as guardian for his brother. The agreement makes no reference to the use of surveillance devices at the group home. BKP has therefore not provided consent as a term of his brother’s accommodation.

40. Ms Y, acting house manager at the group home where DZN resides, was unaware if a video monitor was in use. She was unable to provide any information about whether or not DZN was affected by the monitor nor whether there were any changes in his behaviour, if in fact it was being used. She stated that she did not use it during the day and did not do the ‘sleepover shift’ and could not comment on its use at night.

41. The plan in evidence states that DZN will call out at night and staff will wake up and attend to his personal needs. The camera is to be directed to DZN’s seat when he sits at the dining table if staff are doing other duties. At night the camera is directed at his bed. BKP raised concerns that there is one to one supported independent living funding for the group home to provide 24- hour support.

42. DZN has Down’s syndrome and early-onset Alzheimer’s dementia which affects his ability to make some important lifestyle decisions. As a participant under the NDIS, service decisions are made for DZN. BKP stated that he does consent to medical and dental treatment for his brother and wished to retain the authority of guardianship as he is not always contacted about health matters. He proposes to find alternative accommodation for his brother. If video surveillance is used in the group home, then consent to that use is required.

43. We have decided that it is in DZN’s welfare and interests that a guardianship order remain in place. We have decided to give the guardian authority to make decisions about accommodation, access to services and health care, to consent to medical and dental treatment and to certain restrictive practices known as chemical restraint. We have also decided to give the guardian authority to consent to the use of surveillance equipment in the house in the interests of DZN’s safety and wellbeing.

Who should be appointed as the guardian?

44. The current guardian is BKP.

45. We are not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

46. BKP stated that he wished to remain in the role of guardian for his brother. He is very involved in his brother’s life. No undue conflict of interest was identified.

47. We note that earlier Tribunals have found BKP to be a suitable person and therefore reappoint him as guardian for DZN.

How long should the order last?

48. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made or longer in some circumstances.

49. We decided to make an order for 12 months as BKP intends to find alternative accommodation for his brother in the ACT. If this occurs, then guardianship in the ACT will have to be pursued. We decided to make a 12 month order as DZN will remain in New South Wales, at least in the short term. We decided to make the order non-reviewable on the basis that BKP clearly expressed his intention to move his brother to live closer to him.

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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: 15 June 2021