EZD

[2018] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EZD [2018] NSWCATGD 43
Hearing dates:	22 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Guardianship Division
Before:	J C Simpson, Senior Member (Legal) E Love, Senior Member (Professional) Emeritus Professor P J Foreman, General Member
Decision:	The application for guardianship is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – application dismissed   RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint
Legislation Cited:	National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), rr 6 and 9 Guardianship Act 1987 (NSW), Pt 5
Cases Cited:	Nil
Texts Cited:	NSW Government, Department of Family and Community Service, Restrictive Practices Authorisation Policy (June 2018)
Category:	Principal judgment
Parties:	001: Guardianship Application   EZD (the person) HNT (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2018/00301129
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

Background

1. EZD is a 38-year-old man with autism and intellectual disability. EZD lives in a group home managed by a disability service provider at Northeast Sydney.

2. HNT, long time foster parent of EZD, applied for a guardianship order. This was on advice from the disability service provider who felt that guardianship may be required to provide consent to restrictive practices used with EZD.

What did the Tribunal have to decide?

3. We had to decide:

1. Does EZD have a disability which prevents him from being able to make some important life decisions?

2. Should we make a guardianship order and if so, what order should we make?

Decision

4. Dr Z, consultant psychiatrist, reported that EZD has severe autism spectrum disorder with associated anxiety. It was clear that EZD has a disability preventing him from being able to make important life decisions.

5. EZD attended the hearing. We were unable to have a significant conversation with him but did observe very positive interactions between him and his foster mother and Ms Y from CPA.

6. Dr Z has prescribed psychotropic medication for EZD. He has daily Zoloft and Zyprexa as treatment for his bipolar disorder, which is in remission, and anxiety. Dr Z has also prescribed PRN Largactil related to EZD’s high levels of anxiety and severe challenging behaviour.

7. What prompted the application was the new National Disability Insurance Scheme (NDIS) Quality and Safeguarding regime and a perception that EZD may need a guardian to consent to the PRN medication.

8. Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), “regulated restrictive practices” includes “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 medical disorder, a physical illness or a physical condition”. To use regulated restrictive practices, NDIS-funded service providers have to comply with any state authorisation process, whether that be set up under legislation or policy: rr 6 and 9.

9. In NSW, the Department of Family and Community Services (FACS) has issued a Restrictive Practices Authorisation Policy 2018. This policy requires that any chemical restraint be consented to by the person with disability or, if the person lacks capacity, then by a person responsible under the Guardianship Act 1987 (NSW) or by the Guardianship Division of the New South Wales Civil and Administrative Tribunal.

10. Here, Dr Z wrote that all of EZD’s medication was being given “for the purposes of treating psychiatric disorders, not for the purposes of chemical restraint”. Whether this was the case or not, by virtue of the interplay between the Pt 5 of the Guardianship Act and the FACS policy, the consent of a person responsible was sufficient for EZD’s medications.

11. The applicant is EZD’s long-term foster mother and showed in the hearing a strong and practical focus on his welfare. We were clear that her role as person responsible was sufficient to meet EZD’s interests in relation to issues of consent to his medications.

12. EZD’s behaviour support plan also includes a regime that has been in place for many years for a “response cost” and which is now being faded. Ms Y from the disability service provider elaborated on this in the hearing. Many years ago, a response cost was put in place so that when EZD ripped a T-shirt, he would not get to buy a favourite drink on an outing. This practice was also used when EZD broke a drink bottle. Paradoxically this practice has become very much part of EZD’s life regime so that he expects this consequence and would be very thrown if it did not occur. When he is on the outing, instead of buying a favourite drink, he buys a new T-shirt or drink bottle and gets a drink when he goes home. From the evidence of Ms Y, we did not see this practice as restrictive in that it is not preventing EZD from having access to any item that he wants. When he rips a T-shirt or drink bottle, he is in no way then seeking a favoured drink on an outing but rather seeking to buy a new T-shirt or drink bottle. The incidence of all of this has dropped substantially over time.

13. If EZD was being prevented from buying a drink on an outing, the practice may have been a regulated restrictive practice, namely “an environmental restraint, which restricts a person’s free access to all parts of their environment, including items and activities”.

14. EZD has an actively involved advocate and foster mother in HNT.

15. From the evidence of Ms Y and HNT and the behaviour support plan that we read, we were not satisfied that EZD has restrictions on his rights or other factors in his life that called for the appointment of a guardian.

16. We dismissed the application for a guardianship order.

Who took part in the hearing?

17. The following people attended the hearing:

1. EZD

2. HNT, foster mother and applicant

3. Mr X, brother

4. Ms Y, of the disability service provider

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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: 18 February 2019