EZC

[2020] NSWCATGD 60

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EZC [2020] NSWCATGD 60

Hearing dates:

1 May 2020

Date of orders:

1 May 2020

Decision date:

01 May 2020

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

The guardianship order for EZC made on 28 February 2019 has been reviewed. The order now is as follows:

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

2. This is a continuing guardianship order for a period of three years from 1 May 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Restrictive Practices

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

1. Chemical restraint;

2. Environmental restraint.

b) Other Function

To make decisions about the use of a non-recording security camera for the health and safety of EZC

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

(i) as a last resort to prevent EZC 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 EZC, 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 – whether use of surveillance is a restrictive practice – use of video camera to monitor subject person in his bedroom – use of chemical restraint – use of environmental restraint – private guardian appointed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 17(1)

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

003: Review of Guardianship Order

EZC (the person)
MBO (appointed guardian)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2008/00466269

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. EZC is 31 years old and lives in North West Sydney, NSW, in accommodation where he is supported by an aged care service provider. His mother is MBO and he is reported to be very close to her. He has two siblings with whom he is reported the have frequent contact. He is reported to have telephone contact with his father.

2. On 28 February 2019 the Tribunal made a guardianship order for 12 months appointing MBO as EZC’s guardian to make decisions for him about restrictive practices used to manage his behaviour.

3. On 7 February 2020 the Tribunal adjourned a review of the order made on 28 February 2019 because of the unavailability of parties.

4. The hearing conducted on 1 May 2020 was the end of term review of the order made on 28 February 2019.

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.]

6. EZC did not participate in the hearing. We were satisfied on the basis of matters canvassed in the Tribunal’s Reasons for Decision upon making the order in 2019 that EZC is non-verbal and due to the extent of his disability he would be unable to effectively participate in the hearing.

7. 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.

8. 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.

9. We were satisfied that whilst it would be the interests of EZC to participate in the hearing if he were able, his inability to effectively participate and the risk of distressing him was such that the Tribunal should proceed with the hearing in his absence.

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 EZC 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 EZC 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 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).

13. 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.”

14. When the previous order was made, the Tribunal found that EZC had a disability being resulting from a severe intellectual disability and autism and was unable to make important life decisions.

15. A Draft Behaviour Support Plan dated August 2019 and prepared by Ms Z, a Behaviour Support Practitioner, refers to diagnoses of severe intellectual disability and autism as well as Pica and severe anxiety.

16. There was no evidence before the Tribunal that EZC is now capable of managing his person.

17. Taking into account the previous decision of the Tribunal and the lack of any more recent evidence the contrary, we were satisfied that EZC continues have a disability and as a result he is not able to manage his person and his lifestyle including making important life decisions. He is, therefore, 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?

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 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.

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

20. The Draft Behaviour Support Plan includes the following information:

1. EZC lives in a group home with four other residents who have shared accommodation since 2004.

2. EZC has been known to engage in a number of problematic behaviours including physical aggression, absconding, arson or obsessions with heat and fires, ingesting inedible items such as balloons and gloves or eating and drinking items including liquids such as chemicals or uncooked food, defecating or urinating in communal areas.

3. The Plan provides a number of strategies to deal with EZC’s behaviours and also provides for restrictive practices to be used to control his behaviours. These are:

1. locking doors and gates at the home;

2. restricting EZC’s access to the kitchen by locking the door to the kitchen and opening it only when EZC is accompanied by a staff member;

3. administration of Haloperidol on a regular basis.

4. The Plan also notes that a non-recording camera is installed in EZC’s bedroom for the purposes of ensuring that he has not absconded and the check if he has defecated or urinated in his bed, without needing to wake him by opening his bedroom door, and also to check his location in the room if it is necessary for staff to enter the room when he is upset. The camera is used only at night and is checked hourly. Previously a Perspex window was installed in the door to EZC’s room but this was considered invasive because it allowed other residents and visitors to look into his room.

21. During the hearing Ms Y, who is the team leader at EZC’s accommodation said that:

1. there is a refrigerator outside the kitchen where EZC has free access to safe food and that the primary reason for locking the kitchen is to prevent him burning himself;

2. EZC is able to access the garden of the house during the day when he is in the company of his 1:1 support worker;

3. when the Perspex window was used to check on EZC, he smeared it with faeces so it was not an effective way of checking on him during the night.

22. MBO indicated that she was aware of the practices used to manage EZC’s behaviours and supported them.

23. Since 1 July 2018, registered National Disability Insurance Scheme (NDIS) providers in NSW are regulated by the NDIS Quality and Safeguards Commission (NDIS Commission) and are responsible to ensure that consent and authorisation are obtained for the use of all restrictive practices.

24. Registered NDIS providers and behavioural support practitioners must now comply with the requirements set by the NDIS Commission, including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (“the Rules”), which commenced on 1 July 2018. The Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6):

1. 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;

2. 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;

3. 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;

4. 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;

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

25. We were satisfied that there are environmental and chemical restraints used to manage EZC’s behaviour and that there is a need for a guardian to consider those restrictive practices and to provide consent to those that are appropriate and that are in accordance with a Behaviour Implementation and Support plan that is no more than 12 months old and is renewed at least annually or when EZC’s circumstances change.

26. We considered whether the use of the camera should be considered a restrictive practice and we were of the view that it does not comprise such a practice as it does not restrict EZC’s access to all parts of his environment or restrict or subdue his behaviour. However we were of the view that as the use of the camera impacts on EZC’s privacy, there is a need for a guardian to consider whether its use is justified for protecting EZC’s health and safety.

27. Having reached the conclusions noted in the preceding two paragraphs, we were satisfied that there is a need to appoint a guardian to make decisions for EZC about the environmental and chemical restrictive practices and the use of the camera. We were satisfied that EZC continues to have contact with family members and his family relationships have not been adversely affected by the guardianship order. There was no evidence of any cultural or linguistic affiliations of EZC that are adversely affected by the order. Having reached these conclusions we decided to make the order with the functions set out in the Tribunal’s order.

Who should be appointed as the guardian?

28. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. S/he must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

29. During the hearing MBO demonstrated that she has a good understanding of the issues and strategies used to manage EZC’s behaviour and lifestyle and Ms Y confirmed that MBO is in frequent contact with the group home and is easy for the staff to contact.

30. We were satisfied that MBO remains ready and able to carry out the functions of the order and we were not aware of any conflict of interest or other reason that would prevent her appointment as the guardian. Accordingly, we were satisfied that MBO continues to meet the requirements to be appointed as the private guardian for EZC.

How long should the order last?

31. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We renewed the order for three years because we were of the view that there will be a continuing need for decisions to be made about managing EZC’s behaviours. Should any of the specific restrictive practices, or the use of the camera, become unnecessary then we are satisfied that those decision making functions will not be used in respect of those specific matters.

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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