In the Matter of Evelyn (Guardianship) - [2021] ACAT 126

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF EVELYN (Guardianship) [2021] ACAT 126

GT 67/2021

Catchwords: GUARDIANSHIP – whether an applicant lawyer acted in their personal capacity or on behalf of the subject person – whether a person with dementia has capacity to give instructions to bring legal proceedings or to enter into a costs agreement – professional obligations on a legal practitioner to notify a court or tribunal where the capacity of a client to instruct is in doubt – consideration of the Tribunal’s protective jurisdiction and its obligation to enquire into the interests of the subject person – consideration of the use of restrictive practices in the residential aged care sector – ambit of power to consent to a restrictive practice under an enduring power of attorney – whether dementia is a disability for the purposes of the Senior Practitioner Act – whether a provider of services in connection with a disability, for the purposes of the Senior Practitioner Act, excludes a provider who also provides residential care services
Legislation cited: Aged Care Act 1997 (Cth) ss 54.9, 96.1
Aged Care Quality and Safety Commission Act 2018 (Cth) Part 7B
Guardianship and Management of Property Act 1991 ss 7, 8, 61, 62, 65
Guardianship of Adults Act 2016 (NT)
Human Rights Act 2004 ss 13, 18, 30
Mental Health Act 2015
Mental Health (Secure Facilities) Act 2016
National Disability Insurance Scheme Act 2013 (Cth)
Powers of Attorney Act 2006 ss 11, 17, 18, 53, 74, 96
Regulatory Powers (Standard Provisions) Act 2014 (Cth) pt 8
Senior Practitioner Act 2018 ss 7, 8

Subordinate

Legislation cited: Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (Cth) s 2
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Quality of Care Principles 2014 (Cth) ss 4, 5, 15F, 15FA, 15E, 15HA, 15HB, 15HC, 15HD, 15HE, 15HF, 15HGLegal Profession (Solicitors) Conduct Rules 2015 r 13.1

Cases cited:Al-Kateb v Godwin [2004] HCA 37
Burnett v Browne (No 2) [2021] FCA 373
GAU v GAV [2016] 1 Qd R 1
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Holt v Protective Commissioner (1993) 31 NSWLR 227
HZC [2019] NSWCATGD 8
In the Matter of Ben [2020] ACAT 82
In the Matter of Clara [2019] ACAT 46
In the Matter of Jane [2019] ACAT 18
In the Matter of LQL [2018] ACAT 53
J v Guardianship and Administration Board and anor [2019] TASSC 15
PJB v Melbourne Health and Anor (Patrick’s case) [2011] VSC 327
Re CC [2019] NTCAT 13
Re EH [2020] NTCAT 17
Re LSC and GC [2016] NSWSC 1896
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15
Vishniakov v Lay [2019] VSC 403
VZM [2020] NSWCATGD 25

List of

Texts/Papers cited: Aged Care Quality and Safety Commission, ‘Regulation of restrictive practices and the role of the Senior Practitioner, Restrictive Practices’ (28 June 2021) Regulatory Bulletin; RB 2021-13
Kim Chandler, Ben White and Lindy Willmott, ‘What Role for Adult Guardianship in Authorising Restrictive Practices?’ (2017) 43(2) Monash University Law Review 492
The Hon Justice David Mossop, The Constitution of the Australian Capital Territory (The Federation Press, 2021)
The Hon Justice Geoff Lindsay, ‘Roles in protective management of person and property’ (2018) (92) AIAL Forum 36

Tribunal:Presidential Member G McCarthy

Date of Orders:  17 December 2021
Date of Reasons for Decision:      17 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          GT 67/2021

IN THE MATTER OF EVELYN

TRIBUNAL:Presidential Member G McCarthy

DATE:17 December 2021

ORDER

The Tribunal orders:

The application dated 14 May 2021 is dismissed.

The Tribunal declares:

The enduring power of attorney executed by the principal on 8 August 2017 empowers her attorney, and her substitute attorney if her attorney is unwilling or unable to continue in her appointment, to give consent to others restraining the principal from leaving a place.

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

REASONS FOR DECISION

This proceeding brought at least three important issues regarding guardianship into full view.
First, it illustrated some of the significant complexities that arise for those tasked with making decisions regarding a person with dementia and the difficulties that can arise when striking a balance between respect for the person’s human rights and freedoms and the provision of appropriate care and support.
Second, it illustrated the importance of a legal practitioner obtaining instructions from a person with capacity when endeavouring to promote and protect the interests of a person with a mental disability.
Third, it required consideration of the regulatory complexities regarding the use of restrictive practices to restrain persons with dementia who reside in a residential aged care facility.
The proceeding concerned a woman, now in her mid-80s, who I will refer to as Evelyn.[1]
[1] I have used a pseudonym, Evelyn, for reasons of privacy.
Evelyn has led a full and independent life in Canberra, but is now a resident in a residential aged care facility (the RACF) consequent upon a decision made by her daughter, following receipt of medical advice from a geriatrician as discussed below, that Evelyn is no longer able to live safely in her own home. Evelyn’s daughter (the attorney) made that decision in accordance with an enduring power of attorney signed by Evelyn on 8 August 2017 (the 2017 EPOA). Under that instrument, Evelyn appointed her daughter as her attorney and her grandson as her substitute attorney.
The attorney’s decision that Evelyn no longer live in her own home, and instead live in the RACF, caused much angst for Evelyn and many of her friends.
By application dated 14 May 2021, a legal practitioner who I will refer to in these reasons as Lawyer A sought orders in response to decisions and actions taken by Evelyn’s daughter in her capacity as her mother’s attorney. In subsequent written submissions in support, Lawyer A sought further orders. Lawyer A brought the application in her own name. In paragraphs 36–37 below, I deal with how Lawyer A came to be involved.
All of the orders arose from Lawyer A’s objection to Evelyn’s transfer to a secure dementia ward at the RACF and the restrictions placed on Evelyn’s freedom to leave the RACF as and when she chooses. Lawyer A’s objection was supported by written objections from many of Evelyn’s friends and neighbours.
Lawyer A sought the following orders:
(a)An order revoking the 2017 EPOA.
(b)An order appointing a guardian for Evelyn, with the identity of that guardian “to be advised”.
(c)An order directing that Evelyn be assessed by a geriatrician of Lawyer A’s choosing and by a neuro-psychiatrist if considered necessary by that geriatrician.
(d)An order directing Evelyn’s attorney to permit Evelyn to leave the RACF in the company of friends, to be taken on outings with friends, including to attend her church, to attend shops, to go to her regular hairdresser, and to go to friends’ homes for meals and other social gatherings.[2]
(e)An order directing Evelyn’s attorney to provide Evelyn with sufficient access to her money to enable her to maintain her mobile phone, go shopping, go to cafes with friends, purchase reading material, attend church services, purchase candles and put money in the collection plate.
(f)An order to enable Evelyn to receive visitors at the RACF without first requiring her attorney’s permission.
(g)An order directing the RACF Manager to produce its list of persons who have visited Evelyn since she has been a resident in the RACF.
(h)An order directing Evelyn’s attorney to remove the restrictions she had imposed on who may take Evelyn on outings.
[2] I assumed that the proposed order contemplated that the proposed outings would be permissible under COVID-19 restrictions.
On the evidence filed in support of Lawyer A’s application, it seemed clear that Evelyn did not wish to be in the RACF. Prior to Lawyer A filing her application, Evelyn had stated to her daughter and others that she would “escape” at the first opportunity.
Those sentiments appear to have subsided. At a hearing on 1 October 2021, conducted online for COVID-19 reasons, I asked Evelyn “how are you getting on at the moment?” Evelyn answered “how am I getting on? Fine.”[3] Evelyn went on to say that she had “to serve out this problem and I will serve it out” but was not willing to talk about “the problem”, whatever it was. Evelyn said nothing about not wanting to be in the RACF, or wanting to “escape” from it, although I accept that she might still express those sentiments to others from time to time. I proceeded accordingly.

Procedural background

[3] Transcript of proceedings 1 October 2021, page 10, lines 29-31

I conducted the hearing of Lawyer A’s application in two parts, principally because Lawyer A raised many important procedural and other questions that could or needed to be addressed before turning to more substantive questions.
On 27 July 2021, I heard submissions from Lawyer A, and others, about those procedural questions. On 16 September 2021, I made several procedural orders to facilitate the hearing of the appeal. I provided the parties with private written reasons for those orders, and for why I declined to make some of the orders that Lawyer A wished me to make.
These published reasons draw on my previous private written reasons, anonymised to the extent possible.
The application was listed for further hearing on 1 October 2021. On that day, Lawyer A was represented by Lawyer B who informed me that Lawyer A wished to withdraw her application. Lawyer B drew my attention to considerations bearing upon whether it was appropriate for her to do so. I concluded that Lawyer A should be permitted to withdraw her application, and so will order that her application be dismissed. My reasons are set out below.
Notwithstanding the outcome, many decisions I needed to make in the course of determining this application involved important questions of principle. I therefore informed the parties that I intended to publish my reasons, anonymised to the extent possible.
There was no objection to that course, although Lawyer B submitted that I should also anonymise the practitioners involved, “in the unusual circumstances that we have”.[4] On balance, I have concluded I should do so. Lawyer A’s confusion in her conduct of the matter and the consequences that ensued need to be stated, but I am satisfied that at all times she acted with probity to pursue what she believed to be Evelyn’s best interests and with the support of others. No public interest is served by naming the practitioners involved.

An obligation to enquire

[4] Transcript of proceedings 1 October 2021, page 43, line 30

The attorney engaged a legal practitioner, whom I will refer to as Lawyer C, to respond to Lawyer A’s application. Lawyer C submitted that there had been sufficient disclosure regarding Evelyn’s circumstances for the Tribunal to be satisfied that all decisions and actions regarding Evelyn have been properly made, and that the Tribunal need not and should not inquire further.
Lawyer C relied on the fact that the attorney’s decision to accommodate Evelyn in a secure dementia ward at the RACF was in accordance with medical advice. She referred to a psychiatrist’s report dated 29 April 2021 in which the psychiatrist noted that Evelyn “presents as a woman with fairly advanced dementia” but who wants to “escape”. She referred to a letter dated 17 June 2021 from Evelyn’s general practitioner, who states that Evelyn “does not have the ability to make decisions about her living arrangements”. She referred to a letter dated 14 June 2021 from the RACF Manager, who supported the decision to accommodate Evelyn in the secure dementia unit (or ward) at the RACF.
Lawyer C submitted that the Tribunal should not inquire further, having regard to this information, and that Lawyer A’s application should be dismissed without further consideration.
Evelyn’s grandson, the substitute attorney, expressed it more directly, from a family viewpoint:
How is it that [Lawyer A] can come into our lives and cause so much distress during what is an incredibly challenging time for my grandmother
… I am deeply concerned that [Lawyer A] has taken legal directions from my grandmother while she was in a locked pod within a secure unit in a hospital, and then thought it appropriate to have her sign a costs agreement? Even after conceding in her late submission that she accepts that [Evelyn] has dementia.
I was not persuaded that the Tribunal should dismiss Lawyer A’s application simply by reference to the documents upon which Lawyer C relied or the substitute attorney’s protests. In a paper entitled Roles in protective management of person and property,[5] Justice Lindsay[6] stated:
[T]he Crown, as parens patriae (father, or parent, of the nation), has an obligation, with commensurate power, to take care of those who are not able to take care of themselves.
…
At the highest level of abstraction, NCAT and its appointees represent a means by which the State of NSW endeavours to perform the protective function of the Crown in taking care of individuals who cannot take care of themselves.[7]
[5] The paper was delivered to members of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) on 8 December 2017.
[6] Justice Lindsay is the Probate and Protective List Judge, Equity Division, Supreme Court of NSW
[7] The Hon Justice Geoff Lindsay, ‘Roles in protective management of person and property’ (2018) (92) AIAL Forum 36, 37–38
In my view, this Tribunal in the exercise of its guardianship jurisdiction, represents, correspondingly, a means by which the Australian Capital Territory endeavours to perform the protective function of the Crown.
The pro-active, inquisitorial role that comes with the protective jurisdiction is well-settled: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case);[8] Holt v Protective Commissioner;[9] GAU v GAV;[10] and Re LSC and GC.[11]
[8] [1992] HCA 15; (1992) 175 CLR 218, 258–259
[9] (1993) 31 NSWLR 227 at 238[D]–238[F], 241[G]–242[A]
[10] [2016] 1 Qd R 1, 25
[11] [2016] NSWSC 1896 at [50] quoted in In the Matter of LQL [2018] ACAT 53 at [30]
My decision to permit Lawyer A to proceed with her application was not because there was evidence to suggest that something unlawful or inappropriate was occurring. Rather, it was to permit Lawyer A to put her case and because I was satisfied that the Tribunal, in this case, had an obligation to enquire.

Who is the applicant?

In determining this application, my first concern was who, precisely, was asking me to enquire. This seemingly simple query raised a host of issues.
Lawyer A brought the application in her own name but described herself in the application as Evelyn’s “legal representative”. The extent to which she was acting in her personal capacity or on instructions from Evelyn, or a mixture of both, was unclear. I refer to different parts of the evidence which illustrate the uncertainty.
The medical records state that on or around 29 January 2021 Evelyn was diagnosed with dementia when she was a patient at The Canberra Hospital (TCH). An Australian Government “My Aged Care” record dated 29 January 2021, created in the context of an assessment for access to aged care services, states:
[Evelyn] was admitted to The Canberra Hospital on the 22/01/2021 due to BPSD [Behavioural and Psychological Symptoms of Dementia], Central Chest pain, increased confusion and Fall with head strike. [Evelyn] has significantly declined cognitively and has been identified to require 24/7 care and to no longer have decision-making capacity.[12]
[12] ACT Health clinical patient records, page 188
On 31 January 2021, Evelyn was examined by a psychiatry registrar. The Canberra Hospital patient progress notes regarding the examination include:
Difficult review due to level of paranoia combined with cognitive decline…
States that she is being experimented on and that the people running this facility want her name on the product. Unsure what the product is.
States that she is not scared, and tends to fight when feels threatened. Described doing a number of things including putting liquid soap all over the floor so that people fall over when they come in the room, and then attacking the other patient last night. States that she broke the glass vase and then took a piece of broken glass and tried to cut the other patient’s face with it. States that the other patient is ‘a part of it’ and that is why she did it.
…
Believes that a professor named … is going to take her out to dinner tonight. States that this person told her about this 2 days ago. Believes he called her on the phone.
…
Imp: 84yo Caucasian lady, with newly diagnosed dementia with BPSD. Unclear what type of dementia (from review of the notes).
On review today, [Evelyn] presents as both disorientated and psychotic. It is unclear what her baseline level of cognitive function is, making it difficult to tell if this is an acute delirium superimposed on dementia, or if this is a part of her BPSD associated with her dementia.[13]
[13] ACT Health clinical patient records, pages 271–272
On 12 February 2021, Lawyer A and her business partner, Lawyer D, visited Evelyn at TCH. Lawyer A reports that during their visit Lawyer D spoke with a Senior Staff Specialist, Geriatrician (the geriatrician), “who advised that she had assessed [Evelyn] and [had] activated the EPOA”.[14]
[14] Statement of Lawyer A dated 14 May 2021, at [8]
The phrase ‘activated the EPOA’ is customarily used to address a circumstance where a power given by a principal to an attorney under an enduring power of attorney is exercisable only when the person’s decision-making capacity is impaired. That circumstance applied in this case. Under the 2017 EPOA, Evelyn authorised her attorney to do on her behalf “anything that I can lawfully do in relation to the matters specified below”, which included personal care matters, health care matters and medical research matters. However, under the heading “Commencement”, the 2017 EPOA stated:
My attorney’s powers in relation to personal care matters, health care matters and medical research matters will only be exercisable while I am a person with impaired decision making capacity.
These words repeat the words stated in a document entitled “enduring power of attorney” that has been issued as an approved form under section 96 of the Powers of Attorney Act 2006 (the POA Act).[15] Section 96(2) provides that where the Minister has approved a form for a particular purpose, in this case for the purpose of a person executing an enduring power of attorney, the approved form “must be used for that purpose”. In my view, Lawyer A and Lawyer D knew or should have known, by the geriatrician stating that she had “activated the EPOA”, that the geriatrician considered Evelyn to be a person with impaired decision-making capacity.
[15] AF 2017-45
On 15 February 2021, three days after Lawyer A and Lawyer D visited Evelyn in hospital, Lawyer A received a letter from the attorney’s solicitor in Sydney noting that Lawyer A had purported to take instructions from Evelyn to act on her behalf. The solicitor contended that Evelyn lacked capacity to give those instructions and attached a letter from the geriatrician dated 28 January 2021 addressed to Evelyn’s general practitioner advising that Evelyn “suffers from a medical condition that has affected her capacity to make informed decisions about medical care, lifestyle decisions and finances” and that Evelyn’s EPOA was therefore “activated”.
Notwithstanding the expert medical evidence that Lawyer A and Lawyer D had received from the geriatrician, personally and in writing, regarding Evelyn’s loss of capacity, by letter dated 30 April 2021 Lawyer A wrote to a person whom Evelyn had appointed as her attorney under an instrument entitled ‘enduring power of attorney’ dated 17 September 2014 (the 2014 EPOA). The letter stated (among other things):
We have been instructed by [Evelyn] directly, and by [Lawyer E], to apply to the [Tribunal] to have [Evelyn] released from [the RACF] and to have her 2017 EPOA revoked. [Lawyer D] and I, as partners in the … legal practice, met with [Evelyn] at the Canberra Hospital in March 2021[16] and spent several hours obtaining instructions. We found [Evelyn] to be lucid and considered her to be capable of providing us with clear instructions.
[16] This date appears to be an error. In her statement dated 14 May 2021 in support of her application, Lawyer A stated that she and her business partner, Lawyer D, visited Evelyn on 12 February 2021 when she was a patient at The Canberra Hospital. Nothing turns on this seeming error.

The claim that Evelyn wished to be “released” from the RACF seems to be drawn from a phone call that Evelyn made on 15 April 2021 to her longstanding solicitor, Lawyer E, who specialises in conveyancing. Lawyer E provided a witness statement in which he stated that Evelyn said to him:
I am being held against my will at my daughter’s instruction. Please take whatever legal proceedings are necessary to get me out of here.[17]
[17] Witness statement from Lawyer E dated 5 July 2021, at [19]
Lawyer E says that he “relayed to [Lawyer A] the terms of the conversation”[18] he had had with Evelyn. There is no evidence that Lawyer E instructed Lawyer A to apply to the Tribunal.
[18] Witness statement from Lawyer E dated 5 July 2021, at [20]
Lawyer A later produced, under direction from the Tribunal, a legal costs agreement signed by Evelyn and Lawyer A on 14 May 2021 (the same day that Lawyer A filed her application in the Tribunal). The costs agreement recorded Evelyn’s instructions to Lawyer A’s firm and the basis upon which the firm would perform work for Evelyn. The costs agreement described the “work we have been instructed to do” as follows:
(i).     Apply to the ACT Civil and Administrative Tribunal (ACAT) on your behalf for the purpose of obtaining the following orders –
(a)An order that an independent medical assessment be undertaken by a specialist geriatrician;
(b)A declaration that you have the capacity to make decisions in relation to your future care, where you live, your real property, the management of your finances; and
(c)An order that you be released from [the RACF] or any other involuntary care arrangement authorised by your attorney under the EPOA to be revoked;
(ii).   Prepare a Revocation of your current [EPOA];
(iii).     Conduct searches of the Register of Deeds in NSW and the ACT to ascertain whether your [EPOA] has been registered and, if so, lodge caveats on the titles of your properties to protect your interests;
(iv).   Request that [Lawyer E] of [legal practice], provide us with copies of all your Enduring Powers of Attorney in his possession;
(v).    Assist you to secure a suitable aged care to meet your current and future needs;
(vi).   Do everything else necessary to assist you including to achieve some measure of independence taking into account your current and future wellbeing and health needs.
I struggle with the proposition that Evelyn, with her level of cognition as reported by the geriatrician, could have understood the instructions she had purported to give.
Also, if Evelyn instructed Lawyer A to commence this proceeding, as stated in the costs agreement on Evelyn’s behalf, it is difficult to understand why Lawyer A named herself, rather than Evelyn, as the applicant. Either Evelyn was her client, or she was not. Lawyer A’s written submissions dated 23 July 2021 also illustrated the confusion. They commenced as follows:
Written submissions of Applicant, [Lawyer A]
1. The Applicant acknowledges that [Evelyn] has been diagnosed with dementia. However, the applicant queries whether the extent of [Evelyn’s] dementia requires twenty-four hour care in an acute dementia care facility which impacts on human rights and allows her no freedom of movement.
2. The Applicant submits that there is a very real possibility that the extent of [Evelyn’s] disability has been exaggerated by the Respondent.
Notwithstanding her submissions, in an email to the Tribunal sent on 30 August 2021, Lawyer A reverted to a solicitor/client relationship by describing Evelyn as “my client” and commenting about the “proceedings she instructed me to bring on her behalf”.
The confusion was compounded by the following clause in the costs agreement:
1(c) It is a condition precedent to the coming into effect of the costs component of this agreement that ACAT agree that you have the capacity to enter into such an agreement.
There is no suggestion that Evelyn has paid Lawyer A or her firm anything, or that any claim for payment has been, or will be, made for legal services provided by Lawyer A or her firm in connection with this application.
Why Lawyer A chose to defer to the Tribunal’s assessment of Evelyn’s capacity to enter into a costs agreement, I do not know. However, whatever the reason, the clause highlighted the problem.
For Lawyer A to be paid, the Tribunal’s agreement that Evelyn had capacity to enter into a costs agreement was required. Lawyer A did not ask the Tribunal for that agreement before Evelyn executed the agreement with Lawyer A’s firm, and has not done so since. More significantly, the clause ran the risk that the Tribunal might find that Evelyn did not have capacity to enter into such an agreement. In such an event, not only would the costs component not come into effect, but neither would the whole agreement with the result that Lawyer A would have been acting without instructions and without a client. Lawyer A’s approach ‘put the cart before the horse’.
In situations of this kind, a lawyer’s obligations are clear. In the further hearing of this matter, Lawyer B referred me to a decision of the Supreme Court of Victoria, per Bell J, in Goddard Elliott (a firm) v Fritsch.[19] The statements of principle in that decision are apposite:
Lawyer’s role in cases of doubt
568 We have seen the primary responsibility of a lawyer is to be satisfied the client has the mental capacity to instruct. Doubts about this issue in the mind of the lawyer can also have important consequences for the conduct of legal proceedings. If the issue cannot be resolved to the reasonable satisfaction of the lawyer, as occurred in the present case, the lawyer must raise the issue with the court. It is the court which has the final responsibility to determine the issue. ... As we are about to see, the problem in the present case occurred because (among other reasons) Paul’s lawyers did not adopt this course although it was definitely called for.
569 By these rules and principles, a person having mental capacity can, but a person lacking mental capacity cannot, commence or defend legal proceedings. The person lacking mental capacity must have a litigation guardian appointed (by whatever name). A lawyer must be reasonably satisfied that their client has the mental capacity to give instructions. If they are not so satisfied, they cannot act for or represent the client. They can only be, or act for and represent, the litigation guardian. When a client loses mental capacity, their lawyer loses the authority to act for and represent them. If a person commences a proceeding with that capacity but loses it thereafter, their capacity to participate in the proceeding on their own behalf and instruct their lawyer to do so is also lost. The lawyer loses their authority to act for and represent the party in those circumstances. Therefore, when it arises, the issue of the person’s capacity to commence or participate in legal proceedings is a matter of the first importance for the court and for the person’s legal representative as an officer of the court.[20]
[19] Goddard Elliott (a firm) v Fritsch [2012] VSC 87
[20] Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Goddard Elliott v Fritsch has been cited with approval in Vishniakov v Lay,[21] which was in turn cited in Burnett v Browne (No 2)[22] published on 15 April 2021. In Vishniakov v Lay, the Supreme Court of Victoria, per Derham AsJ, sets out the general principles regarding a lawyer’s responsibility to be satisfied that their client has capacity to instruct, and their obligation to inform the court when capacity is or becomes in doubt. In Burnett v Browne (No 2), O’Callaghan J of the Federal Court described Derham AsJ’s statements as containing “a careful and detailed exposition of the relevant principles and their rationale”.[23]
[21] [2019] VSC 403 at [24], [30]
[22] [2021] FCA 373
[23] Burnett v Browne (No 2) [2021] FCA 373 at [3]
In my view, those principles apply equally to any proceeding brought in this Tribunal. It is fundamental that a lawyer take instructions from someone with capacity to give them.
I appreciate that sometimes it can be very difficult for a lawyer to decide whether a prospective client has capacity to instruct. In my view, at least two factors have a bearing on that question.
First, capacity is not an ‘all or nothing’ concept.[24] It is a judgement for the lawyer to make by reference to what the solicitor is being asked to do and the proposed arrangements for the lawyer doing it. A person may have capacity to instruct in relation to a minor matter where the outcome depends on proof of simple facts, but not capacity to instruct in response to a complex matter. A person may have capacity to understand what they seek, but not capacity to understand the consequences of what they seek, the risks that come with pursuing what they seek or the costs (if any) that they will be required to pay. All of these factors should be taken into account when deciding whether the person has capacity to instruct. Other factors might be relevant, depending on the matter.
[24] See generally, In the Matter of Jane [2019] ACAT 18 at [40]–[45], and the authorities there cited.
Second, a judgement regarding capacity should be made by reference to all the information that the lawyer has to hand or can obtain. I think the so-called ‘debate’ as to whether an assessment of capacity is a medical question or a legal question is misconceived. It is not a question to be deferred to the medical profession.[25] It is for the lawyer to decide by reference to all the information that is to hand, or can be obtained, including medical evidence, responses from the prospective client about what the instructions involve and (where appropriate) the views of others (for example, friends or family) about the person’s capacity. That said, I anticipate that in many situations it would be difficult for a lawyer to conclude that a person has capacity to instruct if the lawyer holds or is aware of reasoned medical evidence to the contrary, especially evidence from a person skilled in assessing capacity such as a geriatrician or a psychiatrist.
[25] See generally, In the Matter of Jane [2019] ACAT 18 at [45]
In this case, by naming herself as the applicant, it appears that Lawyer A chose to act in her own (or personal) capacity to promote Evelyn’s interests, rather than act on behalf of Evelyn as her client. Lawyer A was free to do so, but it necessarily follows that Evelyn was not Lawyer A’s client and the costs agreement with Evelyn should not have been executed. For Lawyer A to describe Evelyn as “my client” and to inform the Tribunal about what Evelyn “has instructed me” to do was misconceived.
I appreciate that the absence of a client placed Lawyer A in a very different position, including the absence of anyone to whom Lawyer A could look for payment, but those were considerations that Lawyer A needed to consider when deciding whether to bring the application and what her role would be if it were brought.
If Lawyer A had made clear from the beginning that she was acting in her own capacity; that Evelyn lacked capacity to instruct; and that Lawyer A was conveying Evelyn’s views and wishes, not her instructions, about matters that were important to Evelyn, all of the subsequent confusion in this proceeding would have been allayed.
On the evidence, especially the medical evidence filed with the Tribunal, I am satisfied that Evelyn, by reason of her advanced dementia, lacked capacity to instruct Lawyer A or her firm.
That was confirmed, in my view, by Evelyn’s participation in the hearing on 1 October 2021. From the beginning, and periodically during the hearing, Evelyn protested about being asked to participate in the hearing without any knowledge of what it was about. She repeatedly stated that she was very “suspicious” about what was occurring. I asked Evelyn if she had “spoken to any solicitors about this”, to which Evelyn answered “No”.[26] In answer to my enquiry about her understanding of why the hearing was occurring and about Lawyer A’s application, Evelyn said:
No, I don’t know anything about it. I don’t know anything about this at all.[27]
[26] Transcript of proceedings 1 October 2021, page 5, lines 9-12
[27] Transcript of proceedings 1 October 2021, page 4, lines 43-44
Evelyn made these statements, notwithstanding Lawyer A stating (and I accept) that she had spent approximately an hour with Evelyn discussing my written reasons given on 16 September 2021. Lawyer A said, and I accept, that Evelyn had received a copy of the reasons and had marked the pages where she had questions, yet at hearing, Evelyn said “No, I never got a copy”.[28]
[28] Transcript of proceedings 1 October 2021, page 44, line 24
The hearing on 1 October 2021 was conducted online for COVID-19 reasons. All participants, including Evelyn, could see and hear each other via computer screens. At the commencement of the hearing, I asked Evelyn if she recognised the people on the screen. She answered “No, I’m sorry I don’t”. I gave Evelyn a pictorial description of Lawyer A and asked “Can you see her in the picture?” Evelyn answered:
Yes, I can see her on the left. I have no idea who she is.[29]
[29] Transcript of proceedings 1 October 2021, page 5, lines 43
I asked Evelyn if she could remember asking a lawyer to help her, or agreeing to pay a lawyer to help her. Evelyn replied:
I don’t even know what you’re talking about.[30]
[30] Transcript of proceedings 1 October 2021, page 14, line 27
Typical of persons with dementia and in ways that were not responsive to the matters being discussed or questions asked, Evelyn gave anecdotes of her life from many years ago.
Evelyn’s lack of capacity to give instructions to Lawyer A is not to say that she did not, or was not able, to express her views and wishes.
I accept, for example, that on 23 February 2021 Evelyn rang Lawyer E and asked if he could get her “released from hospital”. I accept that in April she again rang Lawyer E and asked if he could get her released from the RACF. I do not accept that she understood, or had capacity to understand, why medical practitioners thought she should remain in hospital or, later, in the RACF.
I anticipate that somewhere in the mix someone told Evelyn that that her attorney had ‘activated’ the 2017 EPOA and had made decisions that she remain in hospital and later that she remain in the RACF. I anticipate that this information caused Evelyn to state to Lawyer E, and perhaps to Lawyer A, that she did not “trust” the attorney and wished the 2017 EPOA to be revoked.
None of this equates with Evelyn having the capacity to instruct Lawyer A to bring legal proceedings for the purpose of achieving these outcomes. It is one thing for a person with impaired decision-making ability to state a wish. It is quite another for the person to understand the wish. In particular, relevant to this case, many elderly people with dementia will express a wish to continue living in their own home and in the manner that they have always done but have poor, if any, insight or understanding of their inability to do so. I refer to the facts considered in the Tribunal’s decision, In the Matter of Jane,[31] which illustrate this situation.
[31] In the Matter of Jane [2019] ACAT 18
In this respect, the determinative factor is the lack of ability and capacity to make reasonable judgements, not the judgements themselves. A wish to make what others may think is a poor decision does not necessarily equate with a lack of capacity to decide.
In J v Guardianship and Administration Board and anor,[32] the Supreme Court of Tasmania, per Wood J, noted that there is an important distinction between the making of a good or bad decision and a person’s capacity to decide.
[32] J v Guardianship and Administration Board and anor [2019] TASSC 15 at [42], [62]
In PJB v Melbourne Health & Anor (Patrick’s case),[33] the Supreme Court of Victoria, per Bell J, noted that there are many genuine and legitimate reasons for why a person who decides to continue living in their own home should be able to do so, even though their friends, family, carers or doctors may think (for genuine reasons) that the choice is not in their best interests. Sometimes, a person’s strongly held views and wishes should be upheld, even if the person lacks capacity to understand their views and wishes or the consequences of them. I return to this topic in paragraphs 101–103 and 135 following below.
[33] PJB v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 at [285]
Delirium and psychosis can be temporary, for example where a person is suffering from a severe infection, but that is much less the prospect in the case of delirium overlaid with dementia. I nevertheless considered the possibility that Evelyn might have recovered sufficient insight into her circumstances following her discharge from hospital in order to give instructions to Lawyer A, via Lawyer E, in April 2021, or in May 2021 when Lawyer A filed her application and signed the costs agreement. But that was contradicted by a report dated 29 April 2021 from the psychiatrist who met with Evelyn on that day at the RACF. In her report, the psychiatrist wrote:
Overall, [Evelyn] presents as a woman with fairly advanced dementia, but not one with a psychotic illness and with no evidence of an affective disorder. She appears to be settling in to life in the RACF and whilst she states she is just waiting her time, I suspect her level of ability to organise an escape would be quite limited.
…
[O]rientation was not formally assessed but it was very evident with conversation that [Evelyn’s] short term memory has failed her considerably and she is reliant on her old memories for her extensive conversation. She is however, aware that her home is nearby and she is living ‘in this place’
Insight is very poor as is her judgement around not wanting [to] remain at the RACF and just biding her time until that time is right – presumably to exit.
…
[R]isk of harm to others if feeling threatened, misadventure, self neglect, continued cognitive deterioration and risk of BPSD. Increased risk of delirium given prevailing dementia, falls, harm to self, harm from others given her personality construct.
None of this is to say that Lawyer A’s application was invalid or should not have been brought. Section 62 of the Guardianship and Management of Property Act 1991 (the GMP Act) states the orders that the Tribunal may make “in relation to an enduring power of attorney”.[34] The Tribunal may make orders “on application, or on its own initiative”.[35] An application “may be made by an interested person or, with leave of the ACAT, someone else”.[36]
[34] Guardianship and Management of Property Act 1991, section 62(1)
[35] Guardianship and Management of Property Act 1991, section 62(2)
[36] Guardianship and Management of Property Act 1991, section 62(3)
An ‘interested person’ is defined in section 61 of the GMP Act by reference to the meaning of that term in the Dictionary to the POA Act. The Dictionary refers to section 74 of the POA Act, which defines an interested person to mean (in relation to a power of attorney) an attorney, principal, a relative of the principal, the public advocate, the public trustee and guardian (PTG), a guardian of the principal, a manager of the principal or a person prescribed by regulation. Lawyer A was not an interested person.
In this case, therefore, the issue became whether Lawyer A should be given leave to bring the application. The issue was complicated by the uncertainty as to who brought the application, noting that Lawyer A brought it as the ‘legal representative’ of Evelyn, and that Evelyn (as the principal under the 2017 EPOA) was entitled to bring it in her own right.
Unfortunately, the issue was not raised by anybody until after the Tribunal’s consideration of the application was well advanced and after I provided written reasons on 16 September 2021 that included my reasons for concluding that the application had been brought by Lawyer A personally, not on instructions from Evelyn or anyone else.

Having regard to the important questions of fact and principle that the application raised, I would have given Lawyer A leave to bring the application. However, the application did not progress because – when the hearing of the application resumed on 1 October 2021 – Lawyer A chose to withdraw her application. By this stage, I had determined many of the issues raised in the application. My reasons therefore address the issues that I had already decided and my reasons for permitting Lawyer A to withdraw.

Resignation of the attorney appointed under the 2014 EPOA

Under the 2014 EPOA, Evelyn appointed another of her daughters as her attorney with powers, and limitations on those powers, as described in the instrument.
In the 2017 EPOA, unlike in the 2014 EPOA, Evelyn did not state any directions or limitations on the attorney’s exercise of her powers.
Both EPOA’s were prepared by Lawyer E. Perhaps by oversight, Evelyn did not revoke the 2014 EPOA when making the 2017 EPOA.[37]
[37] Witness statement of Lawyer E dated 5 July 2021 at [5]
In her letter dated 30 April 2021 to the person Evelyn appointed as her attorney under the 2014 EPOA, as referred to in paragraph 35 above, Lawyer A noted her understanding (which was correct) that the 2014 EPOA had not been revoked. On that assumption, Lawyer A asked:
…would you be willing to assist [Evelyn] by appearing as the Applicant in the ACAT proceedings… ?
In my view, from reading the letter as a whole, Lawyer A hoped that Evelyn’s appointee under the 2014 EPOA would agree to apply for an order that Evelyn be released from the RACF and an order that the 2017 EPOA be revoked to cause the 2014 EPOA to become operative.
The earlier appointee did not appreciate receiving Lawyer A’s letter. She provided the Tribunal with a statement dated 14 June 2021 in which she unconditionally supported the many difficult actions and decisions that Evelyn’s attorney has taken in recent times regarding Evelyn’s care and accommodation.
Regarding her appointment as attorney under the 2014 EPOA, the appointee stated:
[On] 30 April 2021, I was handed a personally delivered letter … by a person acting on behalf of … lawyers … The letter informed me that these lawyers were acting for [Evelyn] and they had been instructed to revoke the 2017 EPOA and reinstate the 2014 EPOA. This would see me as [Evelyn’s] EPOA again. This letter upset me as at no time [Evelyn] discuss[ed] this wish [with me], despite my regular phone contacts and two face to face visits, both at Canberra Hospital and again at [the RACF]. I then had to engage my own lawyers, who informed [Evelyn’s] lawyers that at no time I am [sic] interested in taking the EPOA responsibility for [Evelyn], as … [the attorney] is competently doing her job and I have no intention now or in the future to come between [them].[38]
[38] Statement dated 14 June 2021, page 3
There is no suggestion that Evelyn’s earlier appointee has made any decisions under the 2014 EPOA, at least since Evelyn’s attorney was appointed under the 2017 EPOA. Evelyn’s appointees under the 2014 EPOA unequivocally objected to any change of arrangement and supported the decisions that the attorney had been making.
Two options arose regarding the 2014 EPOA.
First, the appointee could, with leave, resign her appointment as Evelyn’s attorney pursuant to section 53(2) of the POA Act. Were that to occur, the 2014 EPOA would be revoked pursuant to section 53(4) of the POA Act.
Second, the Tribunal could revoke the 2014 EPOA pursuant to section 62(2)(c) of the GMP Act.
By email copied to Lawyers A and C, I informed the appointee that I regarded the first approach to be preferable where there was no suggestion that she had done anything untoward and where it gave her control regarding any further legal role she may have regarding decisions on Evelyn’s behalf. I indicated that I would give leave to resign if she sought leave to do so. On 17 September 2021, the appointee applied for leave to resign. On 1 October 2021, I gave that leave.[39]

Revocation of the 2017 EPOA

[39] Transcript of proceedings 1 October 2021, page 31, line 45

For the reasons discussed below, I was not persuaded that the attorney had in any way acted contrary to the interests of Evelyn. I appreciate that she had acted contrary to Evelyn’s stated wishes, but (as discussed above) those wishes must be understood in the context of Evelyn’s advanced dementia.
I appreciate that many decisions that the attorney has made were (and continue to be) necessarily subjective, and that other persons might have made (or would make) different decisions had they been (or were) authorised to do so.
A difference of opinion is not enough. Evelyn’s entrustment of her attorney to make decisions on her behalf pursuant to the 2017 EPOA must be respected in circumstances where there is no suggestion that Evelyn did not “understand the nature and effect” of making the 2017 EPOA at the time she made it. In this regard, I note the matters set out in section 17 of the POA Act that must be taken into account when determining whether Evelyn had that understanding.[40] I note also that Evelyn must be presumed to have had that understanding in the absence of evidence to the contrary.[41] There is none.
[40] See generally In the Matter of Clara [2019] ACAT 46 at [82]–[91]
[41] POA Act, section 18
In my view, the Tribunal’s powers under section 62 of the GMP Act must be exercised by reference to the interests of the principal, objectively judged. On the medical evidence, for the reasons discussed below, I was not persuaded that any actions or decisions that the attorney has taken or made were not sensible or reasonable by reference to Evelyn’s interests, even if others hold sensible and reasonable opinions that differ. Accordingly, I declined to order that the 2017 EPOA be revoked, wholly or in part.
It followed that I also declined to appoint anyone as Evelyn’s guardian.

Further medical assessment

Lawyer A submitted that events in January 2021 leading to Evelyn’s admission to hospital and then her transfer to the RACF arose from a delirious event which has now resolved. She challenged innumerable details of fact stated in different medical reports and medical records regarding Evelyn’s cognition, dementia and manner. She sought a direction from the Tribunal that Evelyn’s capacity be further assessed by a geriatrician of Lawyer A’s choosing and by a neuro-psychiatrist if considered necessary by that geriatrician.
The attorney’s lawyer, Lawyer C, opposed the making of the direction, contending that it was a “fishing expedition” on Lawyer A’s part in the hope of obtaining medical evidence contrary to the medical opinions already expressed.
This was not personal injury litigation, where a person or entity from whom compensation is sought is entitled to test the nature and extent of the injury by medical examination conducted by a practitioner of their own choosing.
As best I can ascertain, Lawyer A, personally, had no material interest in Evelyn’s circumstances: she was a bystander. Lawyer A did not refer me to any authority or legal basis for why I should order an independent medical assessment of Evelyn by a person of Lawyer A’s choosing. I reject the proposition that a bystander, interested or otherwise, can require an independent medical assessment of a person admitted to a residential aged care facility simply because they disagree with the existing medical opinions – even if the bystander is willing to pay for it.[42]
[42] There was no evidence or submission about who would pay for the independent assessment, if ordered.
I appreciate that Lawyer A sought the assessment in the hope of obtaining evidence that Evelyn’s dementia is not so severe or is not of a kind that requires her to live in the RACF or be restrained there. That is a legitimate concern. As discussed below, restraint of a person in a residential aged care facility against their stated wish is a serious matter that has become the subject of extensive community debate and, recently, legislative regulation.
However, in my view, demonstrated compliance with that regulatory scheme – not ad hoc compulsory referral of a person for independent medical assessment – is the proper means for ensuring residential aged care providers account for any measures they take to restrain a person in such a facility.
For these reasons, I declined to direct the attorney to facilitate an assessment of Evelyn’s capacity by a geriatrician of Lawyer A’s choosing.

Restrictive practices

Lawyer A challenged the restrictions on Evelyn’s freedom of movement. She contended that Evelyn should be able to leave the acute dementia ward at the RACF as and when she chooses. She contended that Evelyn’s friends should be able to take her to Mass at her church, as they had previously done, take her to their homes to have a cup of tea by the fireplace and take her on outings.
This aspect of Lawyer A’s application raised perhaps the most important issue in this application: that Evelyn is (or was) restrained in a secure dementia ward contrary to her expressed wishes.
No one could doubt that Evelyn’s life is significantly diminished from that she enjoyed in times past when living in her own home and with the company of her friends, neighbours and other parishioners. I expect everyone wishes Evelyn was able to continue doing so. In issue is the nature and extent of her dementia and the extent to which it limits, if not precludes, her ability to continue doing so. I accept this is a difficult question, and that views will differ.
When considering this question, it must be borne in mind that the attorney’s decision to accommodate her mother at the RACF, to consent to restraints on her freedom of movement and for the persons responsible for managing the RACF to provide those restraints is not motivated by any wish to act contrary to Evelyn’s wishes. The restraints are a response to Evelyn’s impaired ability to make decisions that are in her own interests and her wish (arising from that impaired decision-making ability) to act in ways contrary to her own interests.
On the other side of the equation is a need to give effect to the views, wishes and needs of a person with impaired decision-making ability, to the extent possible and reasonable, however lacking in insight and understanding those views and wishes may be.
Deciding between these competing considerations is a very difficult question of balance. As discussed below, recent legislation ‘draws the line’ very much towards giving effect to the views and wishes of the person.
To restrain Evelyn in a secure ward at the RACF contrary to her wishes is a ‘restrictive practice’. The term captures actions or practices that limit a person’s right to freedom of movement. In Re CC,[43] albeit in the context of an exercise of power by a guardian rather than an attorney, the Northern Territory Civil and Administrative Tribunal (the NTCAT), per President Bruxner, noted the general meaning of the term as follows:
In a recently published paper Chandler, White and Willmott describe ‘restrictive practices’ in the following terms (omitting footnotes):
‘Restrictive practices’ refer to interventions that limit a person’s right to freedom of movement. Restrictive practices include mechanical, physical and chemical restraint, seclusion, and detention (also called ‘containment’). In real terms, this means using physical force to stop people from moving or to pin them to the ground, the use of splints, body suits and ties to restrain people, the administration of psychotropic medication to control a person’s behaviour, and the confinement of people in rooms or other spaces by themselves. Restrictive practices can also involve locking buildings, wards or other rooms to prevent people from leaving. Because restrictive practices infringe on bodily integrity and/or involve controlling a person’s freedom of movement (often in very significant ways), they give rise to civil and/or criminal liability where they are not authorised, justified or excused by law.[44]
[43] [2019] NTCAT 13
[44] Re CC [2019] NTCAT 13 (Re CC) at [11], referring to a paper by Kim Chandler, Ben White and Lindy Willmott, ‘What Role for Adult Guardianship in Authorising Restrictive Practices?’ (2017) 43(2) Monash University Law Review 492, 492–3
The NTCAT observed that the use of a restrictive practice is a trespass on the person, more specifically assault, battery or false imprisonment depending on the kind of restrictive practice that is used. Liability depends on whether there was lawful authority for the act or omission.[45] In VZM,[46] the New South Wales Civil and Administrative Tribunal (the NCAT) made similar observations.[47] I agree.
[45] Re CC at [13]–[14]
[46] [2020] NSWCATGD 25 (VZM)
[47] VZM at [45]–[47]
Lawful use of a restrictive practice has two principal components: the giving of consent to the practice by a person lawfully authorised to give it and the lawful providing (or use) of the practice. In its decision, In the Matter of Ben,[48] the Tribunal commented on the crucial difference between consenting to a restrictive practice, on the one hand, and providing, using or conducting it, on the other.
[48] [2020] ACAT 82 at [42]–[50] (In the Matter of Ben)
In the residential aged care sector, the use of restrictive practices is governed by the Quality of Care Principles 2014 (Cth) (the Principles) made under section 96.1 of the Aged Care Act 1997 (Cth).
Until 1 July 2021, the giving of consent to a restrictive practice (then described as a restraint) was governed under section 15F(1)(e) of the Principles which provided that the use of a restrictive practice required the consent of a care recipient’s “consumer representative”. Under section 5 of the Principles, a consumer representative included a person who “holds an enduring power of attorney given by the consumer”.
In VZM, the NCAT pointed out that whilst the provider could comply with the Principles by obtaining the consent of the consumer’s representative, the giving of the consent said nothing about the lawful authority of the consumer’s representative to give it.[49]
[49] VZM [2020] NSWCATGD 25 at [60(4)]
This circumstance (among many others) was addressed in the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (the Amending Principles) made on 28 June 2021, which amended the Principles. The amendments in Schedule 1 took effect from 1 July 2021. The amendments in Schedule 2 took effect from 1 September 2021.[50] In particular, the Amending Principles, with effect from 1 July 2021, included section 15FA which states:
[50] See Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021, section 2
15FARequirements for the use of any restrictive practice
(1)The following requirements apply to the use of any restrictive practice in relation to a care recipient:
(a)the restrictive practice is used only:
(i)as a last resort to prevent harm to the care recipient or other persons; and
(ii)after consideration of the likely impact of the use of the restrictive practice on the care recipient;
(b)to the extent possible, best practice alternative strategies have been used before the restrictive practice is used;
(c)the alternative strategies that have been considered or used have been documented;
(d)the restrictive practice is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons;
(e)the restrictive practice is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons;
(f)informed consent to the use of the restrictive practice has been given by:
(i)the care recipient; or
(ii)if the care recipient lacks the capacity to give that consent—the restrictive practices substitute decision maker for the restrictive practice;
(g)the use of the restrictive practice complies with any relevant provisions of the care and services plan for the care recipient;
(h)the use of the restrictive practice complies with the Aged Care Quality Standards set out in Schedule 2;
(i)the use of the restrictive practice is not inconsistent with the Charter of Aged Care Rights set out in Schedule 1 to the User Rights Principles 2014;
(j)the use of the restrictive practice meets the requirements (if any) of the law of the State or Territory in which the restrictive practice is used.
(2)However, the requirements set out in paragraphs (1)(a), (b), (c), (f) and (g) do not apply to the use of a restrictive practice in relation to a care recipient if the use of the restrictive practice in relation to the care recipient is necessary in an emergency.
(3)Subsection (2) applies only while the emergency exists.
Note:The use of a restrictive practice in relation to a residential care recipient of an approved provider other than in these circumstances is a reportable incident (see paragraph 54-3(2)(g) of the Act).
Among many other requirements for the use of a restrictive practice introduced by section 15FA, section 15FA(1)(f)(ii) provides that if the care recipient is unable themself to provide consent to the use of the restrictive practice, the use requires the informed consent of a “restrictive practices substitute decision-maker for the restrictive practice”. That term is defined in section 4 of the Amending Principles as follows:
restrictive practices substitute decision maker, for a restrictive practice in relation to a care recipient, means a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:
(a)the use of the restrictive practice in relation to the care recipient; and
(b)if the restrictive practice is chemical restraint—the prescribing of medication for the purpose of using the chemical restraint;
if the care recipient lacks the capacity to give that consent.
Clearly enough, Evelyn’s attorney is a substitute decision-maker for Evelyn under the 2017 EPOA, which is an instrument made “under the law of the …Territory in which [Evelyn] is provided with aged care”, namely the POA Act.
The question was whether the attorney is empowered under that document to give informed consent to the use of the restrictive practice, meaning in this case the environmental restraint.
Under clause 5 of the 2017 EPOA, Evelyn authorised the attorney “to do, on my behalf, anything that I can lawfully do in relation to the matters specified below”. The “matters specified below” included personal care matters and health matters.
Under clause 6 of the 2017 EPOA, Evelyn was able to direct or limit her attorney regarding the exercise of power under clause 5, but the clause is marked “Inapplicable”. The provisions for limiting the attorney’s powers regarding property matters, personal care matters and health care matters are all struck out.
‘Personal care matters’ is a term defined in section 11 of the POA Act as follows:
In this Act:
personal care matter, for a principal, means a matter, other than a health care matter, special personal matter, special health care matter or medical research matter relating to the principal’s personal care, including the principal’s welfare.
There is no suggestion that to restrain Evelyn from leaving the RACF is a health care matter, special personal matter, special health care matter or medical research matter, having regard to the definitions of those terms in the POA Act.
The question, therefore, was whether ‘personal care matte’ can or should be construed as including a power to consent, in this case, to Evelyn’s environmental restraint. A literal construction would suggest that it does, given that the environmental restraint is for a purpose relating to Evelyn’s personal care and welfare. However, at least two factors count against such a construction.

The first factor is that section 30 of the Human Rights Act 2004 provides:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Section 13 then provides:
Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT.
Section 18(1) and (2) then provide:
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
Then there are the statements of the High Court, per Gleeson CJ, in Al-Kateb v Godwin, about the general presumption against interference with basic rights. His Honour said:
In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.[51]
[51] Al-Kateb v Godwin [2004] HCA 37 at [19]
There is, in my view, a respectable argument that when Evelyn entrusted her attorney to make decisions concerning her personal care neither she nor the legislature contemplated a decision to accommodate her in a place against her will and in a manner that prevented her from leaving. In other words, ‘personal care’ should not be read so broadly as to include consent to environmental restraint.
The second factor counting against a literal construction of ‘personal care’ as including environmental restraint is a growing body of decisions in which Territory or State guardianship laws have been interpreted to the effect that a broadly worded power to make decisions on behalf of a person under guardianship that are in the person’s best interests should not be construed as implying a power to authorise decisions about restrictive practices.[52] Rather, by reason of the significance and seriousness of such a decision, a guardian should apply for and obtain (or not) a specific power to make such a decision. In Re CC, the NTCAT, per President Bruxner, put it this way:
… the whole scheme of the Guardianship of Adults Act 2016 (NT) revolves around the matter of an adult’s capacity to make decisions and the recognition that, in carefully identified circumstances, someone may need to be appointed to make decisions that the adult does not have the capacity to make.
There is no obvious reason to regard the decisions with which the Guardianship of Adults Act 2016 (NT) is concerned as including decisions of a character that a represented adult would have no occasion ever to make if he or she were not under guardianship.
A decision by a guardian about subjecting an adult to restrictive practices has precisely that character. It bears no relevant comparison with a decision about (for example) where to live, whether to have a medical procedure or what to buy or sell. [emphasis in original]
[52] See Re CC ; HZC [2019] NSWCATGD 8 at [14]
President Bruxner concluded, therefore, that if a guardian is to be entrusted with a power to consent to a restrictive practice, the power needs to be specifically given – notwithstanding his acknowledgement that “this is a notoriously fraught area”.[53] In Re EH,[54] the NTCAT considered a similar question regarding the ambit of a guardian’s power to make decisions regarding ‘health care’ and whether ‘health care’ could include a decision to consent to chemical restraint. The NTCAT confirmed its reasoning in Re CC to conclude that it did not, and that a specific power was required.
[53] Re CC at [58]
[54] Re EH [2020] NTCAT 17
In the Tribunal’s decision, In the Matter of Ben, the Tribunal came to a similar, although not so determinative, view about a power customarily given to a guardian in the ACT:
… to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect [him/her] from unreasonable risks to [his/her] health and welfare.[55] [footnote omitted]
[55] In the Matter of Ben [2020] ACAT 82 at [14]–[19]
In Ben, the Tribunal was asked to consider whether this power was broad enough to include a power to consent to restrictive practices. The Tribunal added specific powers to permit the guardians to consent to specifically stated restrictive practices, to avoid doubt about whether the above-mentioned ‘health and welfare’ power included a power to consent to restrictive practices.
Returning to the present case, in my view there is a respectable argument, by analogy, that the broad power enabling the attorney to make decisions regarding a ‘personal care matter’ does not extend to consenting to environmental restraint.
In this case, I was not taken to any authority or extraneous explanatory material that comments upon whether an attorney appointed under an enduring power of attorney to make decisions on behalf of the principal in relation to personal care matters, without limitation, is able (or not) to give informed consent to the use of a restrictive practice for the purposes of section 15FA(1)(f)(ii). Nor did I have submissions from anyone on the question.
Nevertheless, doubt exists about whether the 2017 EPOA empowers the attorney to consent to Evelyn’s environmental restraint at the RACF. That doubt places the attorney and RACF Manager in a difficult position regarding Evelyn’s ongoing environmental restraint.
Notwithstanding the arguments mentioned above, I have concluded for present purposes that the 2017 EPOA, granting the attorney power to make decisions regarding personal care matters on behalf of Evelyn without any stated limitation, empowers the attorney to give consent to an environmental restraint of a kind that can be lawfully provided.
Two factors drew me to that conclusion.
First, notwithstanding the important human rights considerations mentioned above, I struggle with the proposition that the attorney is not empowered by reference to Evelyn's grant of power to make decisions regarding ‘personal care matters’, as defined, to make decisions regarding an environmental restraint that are made solely for the purpose of keeping Evelyn safe. Whether a decision is, in truth, being made for that purpose in any particular case is a different question. I am commenting only on the existence of the power.
Second, the attorney’s consent could only operate to the extent that it is in accordance with an environmental restraint that the RACF Manager may lawfully use and with the circumstances in which it may be lawfully used. Consent to something that cannot be done is without purpose.
Having regard to the many preconditions set out in section 15FA(1) of the Amending Principles, in particular that it may be used only “as a last resort to prevent harm to the care recipient or other persons”; only “to the extent that it is necessary and in proportion to the risk of harm; and in “the least restrictive form, and for the shortest time, necessary to prevent harm”, among others, it is difficult to conclude that the attorney is not empowered to give consent for such purposes and in such circumstances.
For these reasons, I am satisfied that the attorney has given informed consent to Evelyn’s environmental restraint at the RACF and had power to do so under the 2017 EPOA. It follows that section 15FA(1)(f)(ii) of the Amending Principles is met.
To address the doubt, I will make a declaration to that effect pursuant to section 62(2)(e) of the GMP Act, as I am entitled to do on the Tribunal’s own initiative.
I nevertheless accept, as did President Bruxner, that this is a fraught and evolving area. I acknowledge that a different view may be formed over time and with the benefit of argument. Also, my finding is only in relation to the environmental restraint to which the attorney has consented in this case.
I turn to the second component for the lawful use of a restrictive practice: lawful provision of the practice, meaning (in this case) the RACF Manager’s compliance with the requirements for use of the environmental restraint as set out in section 15FA.
With effect from 1 July 2021, a restrictive practice is defined in section 54.9 of the Aged Care Act 1997 (Cth) as follows:
Restrictive practice in relation to a care recipient
(1) A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.
(2) Without limiting subsection (1), the Quality of Care Principles may provide that a practice or intervention is a restrictive practice in relation to a care recipient.
Pursuant to section 54.9(2), the Principles (as amended by the Amending Principles) identify and define five types of restrictive practices: chemical restraint, mechanical restraint, physical restraint, environmental restraint and seclusion. The definitions align with the definition of a restrictive practice, and with the five kinds of restrictive practices, in the National Disability Insurance Scheme Act 2013 (Cth).
Relevant for present purposes, ‘environmental restraint’ is defined in section 15E(3) of the Principles as follows:
(3) Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.
On 28 June 2021, the Aged Care Quality and Safety Commission (the Commission) issued a Regulatory Bulletin[56] (the Bulletin) in which it summarised the meanings of the different kinds of restrictive practices. I note the summary regarding environmental restraint:
Environmental restraint is the practice or intervention that restricts, or that involves restricting, a consumer’s free access to all parts of the consumer’s environment, including items and activities, for the primary purpose of influencing a consumer’s behaviour.
Examples of environmental restraint are restricting a consumer’s access to an outside space, removing or restricting access to an activity or outside, or limiting or removing access to a wanted item, such as a walking frame, by putting it out of reach.
[56] Aged Care Quality and Safety Commission, ‘Regulation of restrictive practices and the role of the Senior Practitioner, Restrictive Practices’ (28 June 2021) Regulatory Bulletin page 6; RB 2021-13. The Bulletin was published on the same day as the Amending Principles.
There was no suggestion that the RACF Manager is not complying with its legislative obligations under the Principles generally or section 15FA in particular. In this proceeding, Lawyer A never mentioned restrictive practices or referred to the legislative scheme that governs them.
Nevertheless, where Lawyer A’s application arose in substance from her concern that Evelyn is being kept in the RACF against her wishes and with limited leave, it became incumbent on me to enquire about the RACF’s compliance with the Principles.
The extent to which I should do so was more difficult. I took the view that it was not appropriate to draw the RACF into a disclosure and explanation of its practices when I had no evidence of non-compliance and where Lawyer A did not suggest otherwise. Also, I concluded that would be inappropriate for me to enquire as to the merits of its compliance. Monitoring and enforcement of compliance with the Principles is the role and prerogative of the Commission, not this Tribunal.[57]
[57] See Aged Care Quality and Safety Commission Act 2018 (Cth), Part 7B and the Regulatory Powers (Standard Provisions) Act 2014 (Cth), Part 8. See also the Commission’s ‘Compliance and Enforcement Policy’, version 2.2, published on 14 July 2021.
There were, however, two issues about which I considered it appropriate for the Tribunal to enquire.
First, section 15HA of the Principles provides that if an approved provider (i.e. the RACF in this case) provides aged care to a care recipient (i.e. Evelyn in this case) and behaviour support is needed for the care recipient, the approved provider must ensure that a behaviour support plan (BSP) for the care recipient is included in the care and services plan for the care recipient. Section 15HB lists matters that must be included generally in a BSP. Sections 15HC and 15HD lists matters that must be included in the BSP if a restrictive practice is assessed as necessary, or used, respectively.
These obligations are contained in schedule 2 to the Amending Principles which were made on 28 June 2021. Schedule 2 commenced on 1 September 2021. As I understand it, this was to give residential aged care providers time to put behaviour support plans in place, where required, prior to 1 September 2021.
I was at first inclined to require the attorney to produce the (presumed) BSP in relation to Evelyn, but concluded that would not be appropriate at this stage. I have no role to review its content, and so have no reason to see it. For present purposes, I concluded it was enough that Evelyn’s attorney advise the Tribunal (with reliance on advice from the RACF) whether a BSP is in place for Evelyn that, in the opinion of the RACF, complies with sections 15HA to 15HG (to the extent applicable), and if not, why not.
On 27 September 2021, Lawyer C advised the Tribunal that Evelyn’s care plan included a section on behaviour support that, in the opinion of the RACF complies to the extent applicable with sections 15HA and 15HG of the Principles although additional work was being carried out ensure it is in the appropriate form as required by the legislative changes that commenced on 1 September 2021.
The second issue about which I concluded it was appropriate for the Tribunal to enquire arose from section 15FA(1)(j) of the Principles. It provides, as a requirement for the use of any restrictive practice, that the use “meets the requirements (if any) of the law of the … Territory in which the restrictive practice is used”. This raised the applicability of the Senior Practitioner Act 2018 (the SP Act).

The Senior Practitioner Act 2018

The meaning of ‘restrictive practice’ and ‘environmental restraint’ in the Principles is materially the same as the meanings of those terms in the SP Act. In particular, section 7 of the SP Act states:
7 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
1holding a child’s hand while crossing a road
2fencing around a primary school
(ii)a practice prescribed by regulation not to be a restrictive practice.
‘Environmental restraint’ is defined in section 7 of the SP Act as follows:
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.
Just as the Principles regulate the use of restrictive practices by residential aged care providers and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) regulate the use of restrictive practices by persons or entities that are registered to provide services or support under the National Disability Insurance Scheme (the NDIS),[58] so the SP Act regulates the use of restrictive practices by a provider of services of a kind defined in section 8 of the SP Act. Section 8 states:
[58] See generally In the Matter of Ben [2020] ACAT 82 at [24]–[26], [45]–[46]
8 Meaning of provider
(1) In this Act:
provider—
(a)means a person or other entity who provides any of the following services to another person:
(i)education;
(ii)disability;
(iii)care and protection of children;
(iv)a service prescribed by regulation; but
(b)does not include—
(i)a close family member of the other person; or
(ii)an informal carer for the other person; or
(iii)an exempt entity.
By reference to section 8(1)(b)(i), it is clear that Evelyn’s attorney and substitute attorney are not ‘providers’ for the purposes of the SP Act.
It is also clear that the RACF Manager is not a ‘provider’ under sections 8(1)(a)(i), (iii), or (iv)[59] of the SP Act. The question was whether the RACF Manager is a ‘provider’ because it provides services to manage Evelyn’s disability, namely her dementia, with the result that the RACF Manager is a provider pursuant to section 8(1)(a)(ii) of the SP Act.
[59] As best I can ascertain, no service has been prescribed by regulation for the purposes of section 8(1)(a)(iv).
‘Disability’ is not defined in the SP Act. Nor could I find any persuasive indicators in any extraneous materials about its ambit. In her second reading speech for the purpose of introducing the Senior Practitioner Bill, the Minister said:
This bill will provide greater and much called for assurance for all providers who work with people who display challenging and complex behaviours. It also ensures that we meet our commitments under the national disability insurance scheme, including the NDIS quality and safeguarding framework and the national framework for reducing and eliminating the use of restrictive practices in the disability sector.
…
[T]his bill seeks to provide greater protection for all members of our community who are vulnerable or potentially subject to restrictive practices, not just those with a disability.
The senior practitioner’s powers will extend to disability services, including for psychosocial disabilities …[60]
[60] Australian Capital Territory, Legislative Assembly Debates, 2 August 2018, page 2623
The Explanatory Statement (the Statement) suggests that ‘disability’ should be interpreted broadly. Whilst comment in the Statement on clause 8 of the Bill does little more than replicate the words in clause 8 (now section 8), the Statement under the heading “Background” records the following:
The Bill will allow the protection of the most vulnerable people in the ACT and prevent harm from the unnecessary use of restrictive practices.
The Bill will have a broad scope to capture all people who are vulnerable and potentially subject to restrictive practice, not just those with disability. The powers of the ACT senior practitioner will extend, but not be limited to, schools and other education settings, and children and young people in out-of-home care. The only persons who will be excluded from the ACT senior practitioner’s remit will be those receiving care under the Mental Health Act 2015, the Mental Health (Secure Facilities) Act 2016 to the extent that Act applies, and those in custodial or prison detention (including the Bimberi Youth Justice Centre). This is due to existing oversight arrangements specific to those settings. [emphasis added]
Evelyn is not among “the only persons who will be excluded from the ACT senior practitioner’s remit”.
Of course, as the Statement records in its introduction:
What is said about a provision is not to be taken as an authoritative guide to the meaning of a provision, this being a task for the courts.
If the RACF Manager is a provider for the purposes of the SP Act and its restraint of Evelyn in the secure dementia ward is a restrictive practice for the purposes of the SP Act, it follows that the SP Act governs that restraint. Under the SP Act, there are many limitations and obligations on the RACF Manager regarding the use of that restraint.[61]
[61] See SP Act, Part 3

I could not see any reason to exclude a mental disability from the meaning of ‘disability’ for the purposes of section 8(1)(a)(ii) nor any reason to exclude dementia from other kinds of mental disabilities that are (or might be) disabilities for the purposes of section 8(1)(a)(ii).
Conscious of the structural issue raised, I invited the Senior Practitioner to attend the hearing on 1 October 2021 and to make submissions about whether the RACF Manager is a provider for the purposes of the SP Act by reason of it providing services to manage Evelyn’s disability. Unfortunately, the Senior Practitioner chose not to participate. The Senior Practitioner/Executive Branch Manager, Tracey Harkness, wrote:
The Office of the Senior Practitioner will not be appearing or providing a submission on this matter as the SP Act has no regulatory oversight over aged care services. The only exception to that is an NDIS participant residing within a residential aged care setting. The Senior Practitioner Act (2018) part 2, section 8 defines a provider, which does not include residential aged care providers and [Evelyn] would not be an NDIS participant.[62]
[62] Email to the Tribunal from the Senior Practitioner dated 22 September 2021
I accept, of course, that Evelyn is not and could not be an NDIS participant: she is over the age of 65.
I also accept, of course, that that the SP Act does not apply in relation to the RACF Manager’s provision of residential aged care services. However, I am unable to see why its provision of those services causes it not to be a provider, as defined in section 8. Nothing in section 8 states or implies such an exclusion. For the purposes of the definition, the question is whether the RACF Manager is providing services in connection with Evelyn’s disability, namely her dementia. Plainly, it is, irrespective of what other services it provides.
Put another way, I am unable to see why the fact that someone is providing residential aged care services causes them not to be a provider of a different service, namely a service in connection with a person’s disability.
Where I am satisfied that the RACF Manager is providing services to Evelyn in connection with her disability, it follows that SP Act applies and therefore regulates the RACF Manager’s use of a restrictive practice in relation to its provision of that service, namely (in this case) an environmental restraint to prevent Evelyn from leaving the RACF as and when she chooses.
Ms Harkness’ response suggests that the Senior Practitioner has not taken any steps to ensure the RACF Manager’s compliance with the SP Act in relation to its use of a restrictive practice to manage Evelyn’s disability, but this is not an issue that I should pursue at this stage.
I acknowledge that the SP Act appears to duplicate the regulatory provisions under the Principles, but that appears to be equally true for the regulatory provisions under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) that apply to NDIS participants. It is neither necessary nor appropriate in this case to embark on consideration of the difficult questions that arise by reason of that duplication.[63]

Access to funds

[63] See generally, the Hon Justice David Mossop, The Constitution of the Australian Capital Territory (The Federation Press, 2021) at pages 123–124

Lawyer A sought a direction that Evelyn’s attorney give Evelyn access to her own funds to enable her to maintain her mobile phone, go shopping, go to cafes, purchase reading material and attend church services with funds to purchase candles and put money in the collection plate.
Regarding the mobile phone, I was not persuaded that Evelyn needed funds for this purpose when the attorney stated, and I accept, that the phone is not disconnected and the attorney pays all costs associated with its use.
Regarding funds for the other stated purposes, I concluded that any consideration of Evelyn’s need of funds for the stated purposes should occur in conjunction with consideration of what freedoms she should have to go to the places where she would need funds for these purposes. In other words, it is an issue for the RACF Manager to determine under Evelyn’s BSP.
I also accepted the attorney’s statement that she has given $150 in cash to Evelyn to allay her concerns about not having any money, and periodically gives her more cash as required. I accept also the attorney’s evidence that Evelyn promptly forgets that she has money and again asks for money. This is a common feature of a person with dementia, in my experience.
Accordingly, I declined to make any direction regarding access to funds for any of the stated purposes. I have no reason to doubt that the attorney would provide Evelyn with funds, as she should, commensurate with any leave arrangements made under her BSP or otherwise.
I do not accept that Evelyn should have unrestricted access to her funds in circumstances where the consensus medical opinion is that Evelyn suffers from advanced dementia and has impaired decision-making capacity regarding her finances.

Visitors

Lawyer A sought a direction that the attorney permit Evelyn to receive visitors without first requiring permission from the attorney.
The direction appeared to proceed on the basis that the attorney’s permission was first required before someone could visit Evelyn, but subsequent evidence suggested that was not the case. Lawyer C said in response to the proposed direction that anyone can visit Evelyn at the RACF during normal visiting hours without requiring the attorney’s permission.[64] The attorney provided a statement dated 10 June 2021 in which she stated she has “never denied access to [Evelyn] by her friends who wish to visit her.” The RACF Manager stated that Evelyn “has been visited often by her local friends who often have private conversations with [Evelyn] in her room”.[65]
[64] Written submissions dated 20 July 2021 at [7]
[65] Letter dated 14 June 2021 from the RACF Manager
Where I was not satisfied on the evidence that anyone must obtain the attorney’s permission before visiting Evelyn, I declined to make a direction that the attorney not impose such a requirement. I also declined to make such a direction that she not do so in future, given that circumstances might arise where the attorney could have sound and legitimate reasons for precluding a person from visiting Evelyn.

Access to visitor records

Lawyer A sought access to the RACF’s visitor records to verify who has visited Evelyn. This arose from Lawyer A’s concern that few people have visited Evelyn and her concern about whether persons who wish to visit Evelyn, particularly persons able to administer the sacraments, are being denied permission to visit. Lawyer A indicated that “further action might flow”, depending on what the records disclose.
For reasons of privacy, Lawyer C submitted that Lawyer A should not be informed of those who have chosen to visit Evelyn.
I can understand Lawyer A’s concern about whether people wishing to visit Evelyn, for whatever reason, are being denied permission to do so. However, I was not satisfied that there are legitimate grounds for that concern. Nor could I see how the absence of a person’s name on the records could be evidence that the person was not permitted to visit. I accept the evidence of the attorney and the RACF Manager that there is no restriction on who can visit Evelyn. In particular, permission to visit Evelyn is not required from the attorney or the RACF Manager.
I can accept that Evelyn’s enjoyment of life would be diminished if she has few visitors, but that (regrettably) is true for many persons in residential aged care. I cannot oblige anyone to visit Evelyn.
I reject the proposition that the RACF Manager should be required to provide its visitor records to Lawyer A in circumstances where I could not identify any legitimate reason for her seeing the records. By contrast, RACF Manager has good and proper reasons for recording the names, status and contact details of persons who have visited a resident in the RACF, and the times of their visit, but the provision of that information brings with it a corresponding obligation on the Manager not to disclose it to third-parties other than for a lawful purpose.
I accept Lawyer C’s submission that persons who visit Evelyn and provide details to the RACF Manager about themselves and the frequency of their visits can expect those details to remain private unless disclosed for a lawful purpose.
Paragraph 14 of Lawyer A’s written submissions dated 23 July 2021 suggests there was perhaps some confusion between a complaint about the attorney’s direction as to who can take Evelyn on outings (which appears to have been made) and a direction about who can visit her in the RACF (which appears not to have been made). I have dealt with the latter issue. I deal below with the former issue.
For these reasons, I declined to make an order directing disclosure of the RACF Manager’s visitor records to Lawyer A.

Outings with Evelyn

Lawyer A holds a list of persons that the attorney has agreed can take Evelyn on outings from the RACF. The attorney explained that persons not on the list who might wish to take Evelyn on outings are persons who actively dispute or at least challenge Evelyn’s diagnosis of advanced dementia and challenge the restraint on her leaving the RACF as and when she chooses. Lawyer A objects to the limitation on who may take Evelyn on an outing.
I acknowledge the attorney’s concern that some persons, during an outing with Evelyn, may (or would) discuss their mutual opinion that Evelyn should not be restrained at the RACF. For example, one friend in their statement to the Tribunal described Evelyn’s circumstances as “a crime against humanity”. I can see that on Evelyn’s return to the RACF at the end of an outing with such a person and after such discussions, Evelyn might have heightened concerns about being detained – causing increased distress and difficulty for all concerned, save for the visitor who has returned to their home.
There were also concerns, consistent with Evelyn’s stated wish, that if taken on an outing she may try not to come back. The problem could be exacerbated for all concerned if she is taken on an outing with a friend who disagrees with her placement at the RACF.
Where this issue was closely connected with the environmental restraints currently in place regarding Evelyn’s freedom of movement, and where that issue is closely regulated under the Principles monitored and enforced by the Commission, it was not appropriate for the Tribunal to enter the debate. In my view, questions about leave from the RACF and who should be able to take Evelyn on outings, and where, are questions to be determined and decided under Evelyn’s BSP. In this respect, the requirement under section 15FA(1)(d) of the Principles that a restrictive practice may be used “only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons” would be relevant.
I acknowledge that a situation might arise, in a situation of impasse, where the Tribunal needed to consider an application by a particular person for a direction that the attorney permit that person to take Evelyn on an outing. The particular facts and circumstances would need to be considered, for example the connection of the person with Evelyn, details about the proposed outing and details about why others think the outing should not occur. Nothing of that specificity presently arises, and I like to think that sensible discussion would avoid such an impasse.
However, I am not persuaded that the attorney should not be able to manage, at all, who may take Evelyn on outings and where she may go.

Withdrawal of the application

On 1 October 2021, when the hearing resumed, how to address Evelyn’s circumstances was further complicated by Lawyer B stating that Lawyer A proposed to withdraw her application.
Lawyer B properly drew to the Tribunal’s attention that Lawyer A’s seemingly uncontroversial decision to withdraw her application disguised several complexities arising from her bringing the application.
First, as dealt with above, a legal practitioner in court proceedings has a responsibility to be satisfied that their client has the mental capacity to instruct. Where there is in doubt, the practitioner must raise the doubt with the court and it is for the court to decide whether the client has that capacity. Lawyer B raised the question whether these principles extend to a tribunal and submitted that they do.
Second, Lawyer B referred me to rule 13.1 of the Legal Profession (Solicitors) Conduct Rules 2015 which state a solicitor’s obligations regarding completion or termination of legal services. Rule 13.1 states:
13.1 A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS:
13.1.1the client has otherwise agreed;
13.1.2the law practice is discharged from the engagement by the client;
13.1.3the law practice terminates the engagement for just cause and on reasonable notice; or
13.1.4the engagement comes to an end by operation of law.
Regarding Lawyer A’s withdrawal of the application, Lawyer B raised for consideration whether the exception in rule 13.1.3 or 13.1.4 applied in this case. Lawyer B submitted that rule 13.1.4 applied because Lawyer A’s engagement has come to an end by operation of law, namely as a consequence of the Tribunal’s finding that Evelyn lacked capacity to give instructions.
Third, having regard to the primary application dated 14 May 2021 being brought to promote and protect Evelyn’s interests, Lawyer B raised the question whether an order ought be made regarding the timing of Lawyer A’s withdrawal of her application so as not to impede the Tribunal in its exercise of its parens patriae or protective jurisdiction.
Responding to the first question, I accept Lawyer B’s submission that the principles regarding capacity and determination of capacity by a court, as stated in the decisions referred to above, apply equally to this Tribunal. That is consistent with the Tribunal’s obligation to determine whether a person has impaired decision-making capacity, for the purposes of deciding whether to appoint a guardian or manager,[66] and its power to declare that a principal for an enduring power of attorney “has decision-making capacity or impaired decision-making capacity.”[67]
[66] Guardianship and Management of Property Act 1991, sections 7, 8
[67] Guardianship and Management of Property Act 1991, section 65
Responding to the second question, I accept Lawyer B’s submission that Lawyer A’s obligations under rule 13.1 ceased to apply, pursuant to rule 13.1.4, as a consequence of the Tribunal’s finding that Evelyn lacked capacity to give instructions. Arguably, rule 13.1 never applied because Evelyn never had the capacity to instruct.
Responding to the third question, where I am not persuaded that anything improper or inappropriate is occurring regarding Evelyn’s care for the reasons given in this decision, I see no reason to delay Lawyer A’s withdrawal of her application. To bring this proceeding to a close, I will order that it be dismissed.
………………………………..

Presidential Member G McCarthy

Dates of hearing:	27 July 2021 and 1 October 2021
Applicant:	Name witheld
Solicitor for the Applicant:	Name witheld