In the Matter Of Ben (Guardianship) - [2020] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF BEN (Guardianship) [2020] ACAT 82
GT 525/1997
Catchwords: GUARDIANSHIP – restrictive practices – application for power to consent to a restrictive practice – meaning of restrictive practice – need for consent to a restrictive practice separate from, and in addition to, regulation of service providers who conduct a restrictive practice – grant of power to guardians to consent to environmental constraints and mechanical restraint
Legislation cited: Aged Care Act 1997 (Cth) s 96
Guardianship and Management of Property Act 1991 ss 7, 8
National Disability Insurance Scheme Act 2013 (Cth) s 9
Senior Practitioner Act 2018 ss 7, 8, 9, 10, 10B

Subordinate
legislation cited National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) ss 6, 10, 18, 20
Quality of Care Principles 2014 (Cth)

Cases cited:HZC [2019] NSWCATGD 8
MZC [2019] NSWCATGD 34
VZM [2020] NSWCATGD 25

Tribunal: Presidential Member G McCarthy

Date of Orders: 9 October 2020
Date of Reasons for Decision: 9 October 2020

AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL GT 525/1997
IN THE MATTER OF BEN

TRIBUNAL: Presidential Member G McCarthy

DATE:9 October 2020
ORDER

The guardianship order made on 18 June 2020 is reviewed and varied by adding a new paragraph 2(fa) as follows:
(fa)to give consent to the following restrictive practices:
(i)an environmental restraint, to restrain the protected person from leaving a place;
(ii)an environmental restraint, to restrain the protected person from entering a kitchen when food is being prepared; and
(iii)a mechanical restraint, to restrain the protected person in a seat when travelling in a motor vehicle
PROVIDED THAT the restraint is solely for the purpose of protecting the protected person from risk of harm.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

Ben[1] was born in 1979, and is now 40 years old. He has a disabling syndrome, which has resulted in severe intellectual and physical disabilities. He has undergone many operations in an effort to manage or address those disabilities.
[1] Given the personal nature of this matter, the Tribunal has adopted a pseudonym that bears no resemblance to the protected person’s real name.
In 1997, Mr and Mrs White[2] were appointed as guardians and managers for their son, Ben, pursuant to sections 7 and 8 of the Guardianship and Management of Property Act 1991 (the GMP Act). In 2000, the orders were varied by appointing their three other children as additional guardians and managers. That arrangement has been in place for the past 20 years. On 18 June 2020, the Tribunal made orders confirming their respective appointments.
[2] Given the personal nature of this matter, the Tribunal has adopted a fictitious surname for Ben’s parents that bears no resemblance to their real surname.
The Tribunal’s records amply demonstrate that all members of the White family have, over the years, maintained a caring, connected and positive relationship with Ben. They share common views about his health and welfare, and work together in his best interests.
For the past 25 years, arising from his severe disabilities, Ben has lived in supported accommodation in the ACT. He receives support through the National Disability Insurance Scheme.
In 2016, Sunnyfield disAbility Services (Sunnyfield) took over the management of the group home where Ben lives. At least from that time, Sunnyfield has used what can be described as ‘restrictive practices’ to keep him safe from harm. These practices were put in place with the informed agreement of Ben’s family.
By letter dated 26 June 2020, Sunnyfield advised (and I accept) that the restrictive practices were approved by Sunnyfield’s Restrictive Practice Panel and are in accordance with their protocols for the use of restrictive practices. In its letter, Sunnyfield described the restrictive practices as follows :
Locked external doors and garden gate: [Ben] does not have the capacity to return home, if he leaves the house without staff support. [Ben] has no road sense, placing him at risk of traffic accidents if unsupervised in the community.
Locked kitchen stable-height gate: [Ben] moves very swiftly. He may reach out for hot food, when the staff are cooking for the household, potentially causing harm to himself and staff members. The kitchen gate is kept closed only when staff are cooking hot food, and [Ben] has access to the kitchen at all other times.
Seatbelt Lock: [Ben] uses a seat-belt lock when travelling in a motor vehicle, as he is at risk of undoing his seatbelt in the moving vehicle.
Regarding the first mentioned restrictive practice, which can be described as an environmental restraint, Mr and Mrs White explained that since he was a child, Ben has been able to “fiddle with locks and be out the door when you’ve got your back turned”.[3] Mr White explained that the police had been called at least five times to help look for Ben after he had left, unnoticed, from his parents’ home, from his school or from his group house. Mr and Mrs White explained that Ben has no road sense, and no way to find his way back to the place from where he left. In short, he would be lost. Mr White commented that Ben has entered houses where he does not know any one, found the kitchen and started eating whatever food he can find. When the occupiers of the house asked who he is, or why he is in their house, he is unable to answer because he is unable to speak. Mr White also explained that many people, including the police, are reluctant to hold Ben (should they come across him on the street unaccompanied) for fear of claims of unlawful restraint.
[3] Transcript of proceedings, 3 July 2020, page 10, lines 43-44
Mr and Mrs White explained that although the locks to the house are secure at all times (i.e. 24 hours a day), Ben leaves his group house four days each week (Monday to Thursday) from 9am to 3pm to attend Sharing Places. Mr White explained that Ben goes out in a group of three or four persons under supervision of two staff. Mr White explained that one day each week, one or more of his family take Ben to their home or on an outing for half a day or more, and that on the other two days each week he goes with staff and other residents on a picnic or group excursion. However, in the interests of his safety, “he is not allowed to go out by himself”.[4]
[4] Transcript of proceedings, 3 July 2020, page 11, line 37
Regarding the second mentioned restrictive practice, which can also be described as an environmental restraint, Mr and Mrs White explained that Ben has no appreciation of the dangers that hot foods and hot appliances present to him. The temporary gate to prevent him from entering the kitchen when meals are being cooked is to protect him from risk of harm.
Although the issue was not raised, I offer a preliminary view that a temporary gate of the kind described is an environmental restraint, but is not a restrictive practice. It is no different in principle to the placement of barriers to prevent unauthorised access to places of danger, for example machinery plant rooms, industrial kitchens or workshops. Nevertheless, were others to characterise the temporary gate as a restrictive practice, I am satisfied that Ben’s guardians should be given power to consent to its use in circumstances where it is to protect Ben from risk of harm.
Regarding the third mentioned restrictive practice, which can be described as a mechanical restraint, Mrs White explained that they previously used a ‘three point’ harness, like a “racing driver harness”,[5] in their car so that he would be well supported. She explained that Ben learned how to undo the seatbelt and that on one occasion when she was driving their Toyota Tarago van, she heard “an air noise [and so] turned around and looked”.[6] To use her words:
I was doing 100k going up the Monaro Highway and [Ben] had got out of his seat and had the side door of the Tarago open watching the ground race by underneath its feet.[7]
[5] Transcript of proceedings, 3 July 2020, page 12, line 47
[6] Transcript of proceedings, 3 July 2020, page 13, lines 4 - 5
[7] Transcript of proceedings, 3 July 2020, page 13, lines 6 - 8
As a result, Mr and Mrs White modified their Tarago so that to open the sliding door was controlled by the driver. Mrs White explained that they now use a portable device that can be fitted to any seatbelt to ensure that, when fitted, the seatbelt cannot be released without the use of a device held by another person. I understood that this device is used on a seatbelt in all vehicles in which Ben travels.
By letter dated 25 June 2020, a psychology supervisor from Autism Spectrum Australia, who was engaged to write a behaviour support plan for Ben, confirmed that these restrictive practices have continued to be utilised since Sunnyfield took over management of Ben’s group home in 2016. The implication seemed to be that these restrictive practices had been in place for many years prior to 2016.
The guardians, reasonably in my view, understood that they were able to make decisions consenting to the three above-mentioned practices in accordance with the following power given to them under the Tribunal’s order appointing them as Ben’s guardians:
to make other personal decisions needed to ensure the protected person’s[8] health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;
[8] ‘Protected person’ is a term used in the Guardianship and Management of Property Act 1991 to describe a person with impaired decision-making ability in relation to whom a decision-maker (i.e. a guardian or manager) may make decisions. For this reason, Ben is described in the Tribunal’s order as the protected person.
The Tribunal routinely gives a power in those terms to persons appointed as another person’s guardian, and has done so for many years. Ben’s guardians were given that power under an order made on 29 March 2011, and have held that power ever since. The power is sometimes described as the “health and welfare power”. Prior to 2011, Ben’s guardians held a general plenary power as his guardian.
During the past few years, the use of restricted practices and when they are appropriate has been the subject of much community comment and legislative regulation. This led Sunnyfield to enquire of the Tribunal about whether the above-mentioned health and welfare power is sufficient for the purpose of Ben’s guardians authorising Sunnyfield to use the above-mentioned restrictive practices. In reply, the Tribunal expressed doubt that the health and welfare power extends to empowering a guardian to give consent to a restrictive practice. The Tribunal added:
Consistent with the settled approach in New South Wales,[9] decisions about a restrictive practice should be the subject of a specific power given to the guardian. Whether to give the power, and whether it should be the subject of conditions regarding its exercise, would be a matter for determination by the Tribunal at a hearing on a case-by-case basis. Such a power, and the exercise (or not) of it, would also give NDIS service providers and behavioural support practitioners greater confidence that they have obtained lawful consent or authorisation for the use of a restrictive practice before it is used.
[9] See HZC [2019] NSWCATGD 8 at [34]
Sunnyfield informed Ben’s guardians of the Tribunal’s view, which led them to apply for review of the Tribunal’s orders. All of Ben’s five family members, as his guardians, attended the review hearing which was conducted by telephone in accordance with COVID-19 restrictions. Ms Anderson, Sunnyfield’s regional manager, also attended the hearing. Ben did not attend the hearing. The guardians explained that Ben does not speak and “has very little understanding of anything other than basic concepts like food and drink”.[10] That is consistent with the medical evidence. I was satisfied that, in the circumstances, it was not necessary for Ben to attend the hearing.
[10] Transcript of proceedings, 3 July 2020, page 5, lines 17-18
For the reasons that follow, I was satisfied that the guardianship order should be varied to add a specific power permitting Ben’s guardians to authorise an environmental restraint and/or a mechanical restraint, as a restrictive practice, for the purposes stated in Sunnyfield’s letter dated 26 June 2020, provided the restraint is solely for the purpose of protecting Ben from risk of harm.
The specific power is given to avoid doubt about whether the health and welfare power already permits Ben’s guardians to consent to the restrictive practices: it should not be inferred from the grant of the additional power that these restrictive practices have been occurring without lawful consent.
The question then was how the specific power should be granted.

The legal framework

A useful starting point is to consider what is a ‘restrictive practice’. Views on that question differ, and have changed over time. It can be difficult to construe a power to consent to a restrictive practice when there is uncertainty about what is, and is not, a restrictive practice.
Some kinds of restraints might at first appear to be a restrictive practice, but on closer examination are not. In my view, as mentioned, a gate to prevent Ben from entering the kitchen when meals are being cooked is not a restrictive practice. In VZM,[11] the NSW Civil and Administrative Tribunal (NCAT) considered the circumstances of VZM who has physical disabilities including quadriplegia. NCAT found that the use of bed rails to prevent VZM from rolling out of bed by accident was not a restrictive practice because the bed rails did not restrict her movement: her quadriplegia restricted her movement. VZM is immobile and relies entirely upon the assistance of others.
[11] VZM [2020] NSWCATGD 25
In HZC,[12] NCAT commented on the uncertainty about what is a restrictive practice:
32     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.
33     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”.
34     The Tribunal has for several years recognised that decision making about the use of restrictive practices is a matter which it should recognise as a specific function which might be assigned to a guardian, so that the guardian’s role in making decisions about such matters is clear and to avoid the use of plenary orders, as required by s 15(4) of the Act.
35     Similarly, over time, through clinical practice the nature of the restrictive practices which are used have been categorised and grouped in such a way as to allow their consistent description. Whilst there is a very broad range of restrictive practices which are used in the support of people with a disability, commonly used and understood terminology has developed.
36     NSW, however, has no legislative definition of restrictive practices or any of the subcategories of restrictive practice which are used in practice. As a result, the decisions of this Tribunal and the former Guardianship Tribunal of NSW have developed alongside clinical practice and have used the descriptions of the various practices that are understood within the disability support sector.
[12] HZC [2019] NSWCATGD 8
In HZC, NCAT noted that ‘restrictive practices’ is defined in section 9 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) as follows:
any practice or intervention that has the effect of restricting the rights or freedom of movement of the person with disability.
In HZC, NCAT noted that this definition “is consistent with the [Tribunal’s] common usage of the phrase”.[13]
[13] HZC [2019] NSWCATGD 8 at [38]
In HZC, NCAT noted a more detailed definition of a restrictive practice in rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the NDIS Restrictive Practices Rules) made under the NDIS Act, as follows:
a restrictive practice is a regulated restrictive practice if it is or involves any of the following (r 6):
(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.
Regarding use of these definitions for the purpose of deciding whether a guardian should be given power to consent to the use of a restrictive practice, NCAT in HZC said:
44 This Commonwealth legislation, and the definitions it contains, is not binding on the Tribunal in its deliberations when considering whether it should appoint a guardian with the function of making decisions about restrictive practices.
45 Notwithstanding that, it would seem to us that there are sound reasons why it would be in the best interests of people with whom restrictive practices are being used in NSW, for there to be some consistency in the way the definitions are applied throughout the quality and safeguards arena and within the Tribunal.
The NCAT noted the complications caused by the lack of legislative clarity and legislative comity between NSW and Commonwealth in this area, and suggested that “the NSW community may well benefit from legislative attention”.[14] However, in the absence of definitions for the different kinds of restrictive practices under the law of NSW, NCAT expressed the view that the definitions in the NDIS Restrictive Practices Rules should be adopted as appropriate when considering whether to empower a guardian to give consent to a restrictive practice and what that practice entailed.[15]
[14] HZC [2019] NSWCATGD 8 at [49]
[15] HZC [2019] NSWCATGD 8 at [3]
In the ACT, ‘restrictive practice’ is defined in the Senior Practitioner Act 2018 (Senior Practioner Act) as follows:
Meaning of restrictive practice
(1) In this Act:
restrictive practice—
(a)     means a practice that is used to restrict the rights or freedom of movement of a person for the primary purpose of protecting the person or others from harm; and
(b)     includes the following:
(i)    chemical restraint;
(ii)   environmental restraint;
(iii) mechanical restraint;
(iv)   physical restraint;
(v)    seclusion;
(vi)   verbal directions, or gestural conduct, of a coercive nature; but
(c)     does not include—
(i)reasonable action taken to monitor and protect a child from harm; or
Examples
1   holding a child’s hand while crossing a road
2   fencing around a primary school
(ii)a practice prescribed by regulation not to be a restrictive practice.
(2)     In this section:
chemical restraint—
(a)     means the use of medication or a chemical substance for the primary purpose of influencing a person’s behaviour or movement; but
(b)     does not include the use of a chemical substance that is—
(i)prescribed by a medical practitioner or nurse practitioner for the treatment, or to enable the treatment, of a mental or physical illness or condition in a person; and
(ii)used in accordance with the prescription.
environmental restraint means any action or system that limits a person’s ability to freely—
(a)     access the person’s surroundings or a particular thing; or
(b)     engage in an activity.
mechanical restraint—
(a)     means the use of a device to prevent, restrict or subdue the movement of all or part of a person’s body; but
(b)     does not include the use of the device—
(i)    to ensure the person’s safety when travelling; or
(ii)   for therapeutic purposes.
physical restraint—
(a)     means the use or action of physical force to stop, limit or subdue the movement of a person’s body or part of the person’s body; but
(b)     does not include a reflex action of reasonable physical force and duration intended to guide or direct a person in the interests of the person’s safety where there is an imminent risk of harm.
seclusion means the sole confinement of a person, at any time of the day or night, in a room or other space from which free exit is prevented, either implicitly or explicitly, or not facilitated.
Examples
1   A person in disability group accommodation is sent by the provider for ‘time out’ in a quiet space and told they are not allowed to leave the space until the provider tells them.
2   A young person living in residential care is told by the provider that they must not leave their bedroom at night after 9pm.

It can be seen that the NDIS Restrictive Practices Rules and the Senior Practitioner Act refer to the same five kinds of restrictive practices and define them in materially the same way.
The definitions of the different kinds of restrictive practices in the Senior Practitioner Act are for the purposes of that Act only. However, in my view, in the interests of comity and clarity for all who need to consider the question of restrictive practices in the ACT, those definitions should be adopted and applied by the Tribunal when considering whether to grant a guardian a power to consent to a restrictive practice and by others when interpreting and applying the Tribunal’s grant of such a power.
I return to the grant of power to Ben’s guardians to consent to the kinds of restraints currently being conducted. Each case should be decided on its own facts, however NCAT’s decision in MZC[16] confirmed my view that the power should be given. In MZC, NCAT considered the circumstances of a 54 year old man with a severe intellectual disability. Like Ben, MZC has a supportive family. NCAT considered an application for appointment of a guardian with power to give consent to restrictive practices including (among others) the use of locks on the fridge, freezer and pantry in MZC’s accommodation and power to give consent to the installation of a barrier in a motor vehicle used by MZC.
[16] MZC [2018] NSWCATGD 34
The applicant requested the first power because MZC has “food-seeking behaviour and dysphasia”. NCAT recorded that accessible food placed MZC at “immediate choking risk” and is “a trigger for behaviours which cause damage to property and possible harm to MZC, his staff and immediate neighbours”[17]
[17] MZC [2018] NSWCATGD 34 at [5]
The applicant requested the second power because it would significantly reduce the risk to MZC, his staff and others when MZC is travelling in a car. The barrier was described as “a safety-related strategy associated with non-purposeful risk behaviour”.[18]
[18] MZC [2018] NSWCATGD 34 at [9]
In MZC, NCAT appointed the NSW Public Guardian as guardian with power to make decisions about restrictive practices, including the two practices mentioned above. Its reasoning for doing so commenced with the following statements:
Restrictive Practices
24     Restrictive practices are used to manage challenging behaviour or avoid injury, with the primary purpose of protecting the person or others from harm. The Act[19] does not define restrictive practices. Generally, however, a restrictive practice has been viewed as any practice or intervention that restricts a person’s rights, freedom of movement or access to objects.
25     Under the common law, the use of a restrictive practice could be unlawful if the practice amounts to an assault, detinue or wrongful imprisonment and the person implementing it does so without the necessary consent or a lawful defence, such as self-defence and necessity. In these circumstances, the Tribunal can make a guardianship order, appointing a guardian to give consent to such practices, particularly when there are doubts about the lawfulness of a practice used to manage challenging behaviour.
26     In addition to the question of lawfulness, the Tribunal considers all other relevant circumstances when deciding whether to appoint a guardian to decide about restrictive practices, including the views of the person and others, as well as the context, the nature, the degree and the purpose of the restrictions to ensure that the rights of the subject person are not breached. These considerations ensure an adequate balance between the rights to autonomy of a person with a disability and the need for some members of the community to manage challenging behaviours in the best interests of the person.
[19] The reference to “the Act” is a reference to the Guardianship Act 1987 (NSW)
I adopt and agree with those observations. I am also satisfied that, in this case, the grant of a specific power to Ben’s guardians to give consent to the three above-mentioned restraints is reasonable and appropriate.
I turn to the question of how the power should be framed. The guardians and Sunnyfield were understandably concerned that if the power or powers were quite specific, they would need to return to the Tribunal for a variation of the powers or an additional power whenever Ben’s circumstances changed in a small but material way. On the other hand, the guardians did not seek or suggest an unconditional power to consent to restrictive practices.
In MZC, NCAT gave reasonably specific powers, namely “use of a chemical restraint on a PRN basis”, “use of a shield/barrier in any vehicle involved in transporting MZC” and “restriction of his access to the contents of fridge, freezer and/or pantry”. The NCAT also placed conditions on the exercise of the power.
In HZC, the NCAT instead gave general powers, but subject to significant conditions. The powers are stated as follows:
Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence HZC’s behaviour :
1. Chemical restraint;
2. Environmental restraint;
3. Mechanical restraint; and
4. Seclusion.
The conditions on the exercise of the powers are stated as follows:
Restrictive Practices Conditions
The guardians may only consent to the use of the types of restrictive practices permitted under this order to influence HZC’s behaviour:
(i)as a last resort to prevent HZC harming herself 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 HZC, 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.
The references in condition (ii) to “a behaviour support plan”, a “behaviour support practitioner” and a “functional behavioural assessment” are references to those terms in rules 10(2)(a), 18(a) and 20(5), respectively, of the NDIS Restrictive Practices Rules.
This draws me to comment on the different but interacting roles of those who consent to a restrictive practice, and those who provide and/or carry out a restrictive practice.
In VZM, NCAT noted that the use of restrictive practices on a person who is unable to provide their own informed consent potentially leads to an infringement of rights to personal autonomy and freedom of movement. The appointment of a guardian with power to give consent to a restrictive practice on behalf of a person who is unable themselves to give informed consent to the practice is therefore critical because it “makes lawful that which would otherwise be unlawful”.[20]
[20] VZM [2020] NSWCATGD 25 at [47] - [56]
However, for the person intending to provide or conduct a restrictive practice, a guardian’s consent to the practice is often not enough.
If the subject person is accommodated in a residential aged care facility, the person or entity managing that facility must do so in accordance with the Aged Care Act 1997 (Cth). That, in turn, requires the person or entity managing the facility to comply with the Quality of Care Principles 2014 (Cth) made pursuant to section 96-1 of the Aged Care Act 1997. Since 2019, those Principles include regulatory requirements regarding the use of restraints by residential aged care providers.[21] For this reason, a guardian may consent to a restrictive practice, but the provider can only conduct it if it will be in accordance with the Quality of Care Principles.
[21] See Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 and the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019
Likewise, if the subject person is receiving services or support under the NDIS, the person providing those services or support, meaning a registered NDIS provider, must do so in accordance with the NDIS Act. That, in turn, requires the NDIS provider to provide those services or support in accordance with the NDIS Restrictive Practices Rules. Under those Rules, an NDIS provider who uses a restrictive practice in the course of delivering NDIS supports must do so in accordance with conditions of use. These conditions include that a restrictive practice not occur where a relevant State or Territory prohibits its use; that it be undertaken in accordance with relevant State or Territory authorisation processes and a behaviour support plan; and that it be recorded by the NDIS provider and reported to the NDIS Commissioner.
In the ACT, the Senior Practitioner Act regulates the use of restrictive practices in other areas. In summary, it provides that a person or entity who provides (i) education, (ii) disability or (iii) care and protection of children services to another person must not use a restrictive practice unless it is in accordance with a registered positive behaviour support plan for the person or it is necessary to avoid imminent harm to the person and is the least restrictive of the person as is possible in the circumstances.[22]
[22] This description is only a general summary. The constraints regarding the use of restrictive practices are set out in greater detail in sections 7 – 10B of the Senior Practitioner Act.
I do not dwell on these extensive regulatory schemes that govern providers of different services who conduct restrictive practices in the course of providing those services because the operation of those schemes does not arise for consideration in this application for review. In issue is whether Ben’s guardians should be given power to consent to the proposed restrictive practices, not the schemes that regulate those who conduct those practices. In HZC and VZM, NCAT noted that the difference between the two roles “cannot be overstated”.[23]
[23] HZC [2019] NSWCATGD 8 at [68]
It is, in principle, no different to the regulation of many others who provide services to a person with impaired decision-making ability. For such a person, it is (often) necessary that someone with legal authority to do so (i.e. a guardian) gives consent on behalf of the person to receive those services, for example supported accommodation, supported employment or medical treatment. But the giving of consent does not in any way affect or diminish any regulatory schemes that govern persons who provide the accommodation, the employment or the treatment to the protected person. This case concerns the former issue, not the latter.
The need for consent to a restrictive practice is separate from, and in addition to, a provider’s compliance with a scheme governing the conduct of the practice.
The final question is how to frame the power. I concluded that the power should be given by reference to the kinds of restraints that are necessary, and that the only condition that should be placed on the guardians is that the consent be solely for the purpose of preventing risk of harm to Ben.
Two factors drew me to that conclusion.
First, the providers of services to Ben are already comprehensively regulated about the kinds of restrictive practices they can provide and the manner in which they can provide them. I therefore saw no reason to condition the exercise of the power by reference to these regulatory requirements because they will apply regardless of whether the giving of consent is conditioned in that way.
Second, Ben’s guardians explained, and I accept, that the providers of services are not the only persons who need to conduct these restraints. The restraints are also necessary when Ben is under his family’s care, for example when he comes to his parents’ home or when his family take him on an outing. Whilst the issue was not explored, it would seem that in these situations none of the above-mentioned regulatory regimes applies. In my view, when Ben is under the care of his family, they should be able to use the above-mentioned environmental and mechanical constraints, and give consent (as they see fit) for others who are not Ben’s guardians and are not care or service providers to use those restraints, provided they are used solely for the purpose of preventing risk of harm to Ben.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS

FILE NUMBER:	GT 525/1997
PARTIES, APPLICANT:
PARTIES, RESPONDENT:
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Presidential Member G McCarthy
DATE OF HEARING:	3 July 2020