HBN

[2020] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HBN [2020] NSWCATGD 13

Hearing dates:

24 February 2020

Date of orders:

24 February 2020

Decision date:

24 February 2020

Jurisdiction:

Guardianship Division

Before:

R L Bailey, Senior Member (Legal)

Decision:

The guardianship order for HBN made on 16 January 2017 has been reviewed. The order now is as follows:

 

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

 

2. This is a continuing guardianship order for a period of three years from 24 February 2020.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Accommodation

 

To decide where HBN may reside.

 

b) Health care

 

To decide what health care HBN may receive.

 

c) Medical/Dental consent

 

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

 

d) Services

 

To make decisions about services to be provided to HBN.

 

e) Restrictive Practices

 

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

 

1. Chemical restraint

 

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

In exercising this role the guardian shall take all reasonable steps to bring HBN to an understanding of the issues and to obtain and consider his 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 HBN’s behaviour:

 

(i) as a last resort to prevent HBN 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 HBN, 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 – review of a guardianship order – end-of-term review of guardianship order – whether a further guardianship order should be made – need for accommodation decision making – current group home moving to a different location – need for health care decision making – subject person requires x-ray and possible colonoscopy – need for decision making about the use of restrictive practices – chemical restraint – subject person prescribed psychotropic medication on a PRN basis – private guardian suitable to continue as guardian – private guardian appointed – order made.

Legislation Cited:

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

012: Review of Guardianship Order

  HBN (the person)
NZN (appointed guardian)
NSW Public Guardian

Representation:

Nil

File Number(s):

NCAT 1992/00064445

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

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order for HBN made on 16 January 2017 and renewed it for a period of three years. NZN is appointed as guardian to make decisions about accommodation, health care, medical and dental consents, restrictive practices (chemical restraint) and services.

Background

2. HBN is a 71-year-old man, who lives in supported accommodation run by a disability service provider in regional NSW. HBN has no siblings and his closest family member is NZN, wife of HBN’s late-cousin, Mr Z.

3. HBN has been known to the Tribunal since 1992. The Tribunal has previously made a finding that HBN has schizophrenia and an intellectual disability, which affects his capacity to make life decisions. Most recently, the Tribunal appointed NZN as HBN’s guardian for a period of three years to make decisions about accommodation, health care, medical and dental treatment and services.

4. This is the hearing of the statutory end of term review of the guardianship order.

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 HBN 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 HBN 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 or 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 HBN had a disability and was unable to make important life decisions. There is no new evidence before the Tribunal, which would cause it to alter its previous findings in relation to this issue.

10. The Tribunal is satisfied that HBN 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;

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.

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 the 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).

13. NZN was appointed to make decisions about accommodation, services, health care and medical and dental treatment.

Accommodation

14. NZN attended the hearing by telephone and told the Tribunal that HBN has settled very well into his group home at regional NSW. He is very happy with his three co-residents and has expressed the view that he is much happier in this accommodation than he has been in the past.

15. Mr Y is the Acting Team Leader at the group home. He confirmed that HBN is well-settled and very happy in his current accommodation. However, he told the Tribunal that there is a current proposal that HBN’s accommodation will change as all the residents from that group home in regional NSW will be moved to a different location closer to another suburb in regional NSW. This has been in process for approximately 14 months. The date on which this will occur is still not certain, but it is currently foreseen. Mr Y told the Tribunal that the new residence will be closer to the other suburb in regional NSW and HBN’s community. It will enable him to have better and easier access to medical practitioners and other community activities. It is also a more modern residence.

16. He submitted that there remains a need for a guardian to make decisions about accommodation because HBN has displayed anxiety about changing his accommodation and because he will need an advocate to ensure the suitability and make decisions about the proposed accommodation change.

17. The private guardian agreed.

18. The Tribunal accepted Mr Y’s evidence because it was uncontested. On the basis of that evidence, the Tribunal is satisfied that there is a current need for a guardian to make decisions about HBN’s accommodation.

Health care and medical and dental treatment

19. The guardian told the Tribunal that HBN’s health is relatively good, although he did have an admission to hospital in October 2019 with severe constipation and urinary blockage.

20. Mr Y confirmed that HBN receives general check-ups in the group home and that the guardian is fully informed in relation to HBN’s health. HBN has been prescribed a number of medications for his osteoarthritis and other co-morbidities. He has also been prescribed Reductil which is a psychotropic medication on a PRN basis to treat behaviours of concern. Mr Y confirmed that this prescription has not been made to treat a diagnosed medical condition but solely for the purpose of managing behaviour. He confirmed that there has been a Behaviour Support Plan developed in the past and that this was most recently reviewed in January 2020. The draft plan is in its development stage. He submitted that there remains a need for a guardian to make decisions about health care and medical and dental treatment but also to make decisions about the use of restrictive practices, mainly chemical restraint.

21. He also told the Tribunal that HBN will have an x-ray in approximately two weeks to establish whether he may require a colonoscopy. He, therefore, submitted that there remains a need for a guardian to provide or withhold consent to medical and dental treatment and to make decisions about HBN’s access to health care. The Tribunal noted that the current guardian is HBN’s cousin-in-law as oppose to a blood relative. The Tribunal is satisfied that there are imminent decisions to be made about medical treatment for HBN and that it is in HBN’s best interests that there be no ambiguity about the identity of his substitute decision maker. Because it was not contested, the Tribunal accepted Mr Y’s evidence that there is a need for a guardian to be appointed to make decisions in relation to health care and medical and dental treatment.

22. It has long been understood that some members of our society, who receive ongoing support in their activities of daily living, may engage in certain behaviours which involve physical or other risks to themselves and others and that responses need to be developed to reduce or remove those risks.

23. Over time, those behaviours have commonly been described as “challenging behaviours,” or more recently, “behaviours of concern” and the practices used to reduce or prevent them have become known as “restrictive practices”.

24. Registered National Disability Insurance Scheme (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.

25. 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 restrict a person’s free access to all parts of their environment, including items or activities.

26. In view of the evidence that HBN has been prescribed psychotropic medication for the purpose of behaviour management, and in view of the fact that the current Behaviour Support Plan is still in its development phase, the Tribunal is satisfied that there is a current need for a guardian to make decisions about the use of restrictive practices and HBN’s access to services.

27. The Tribunal, therefore, decided that a further order should be made with the guardian having the functions of accommodation, health care, medical and dental consents, restrictive practices (chemical restraint) and services.

Who should be appointed as the guardian?

28. The Tribunal has previously decided that NZN meets the requirements of the Guardianship Act and may be appointed as guardian for HBN.

29. The Tribunal was satisfied that NZN continues to meet the requirements of the Act and re-appointed her as guardian.

How long should the order last?

30. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

31. The Tribunal decided to make an order for a period of three years.

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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 June 2020