James (a pseudonym)

[2025] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

James (a pseudonym) [2025] NSWCATGD 1

Hearing dates:

12 March 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Guardianship Division

Before:

EM Connor, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
M Watson, General Member (Community)

Decision:

The guardianship order for James made on 10 October 2024 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 12 March 2025.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where James may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take James to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care James may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to James.

f) Restrictive Practices

To give or withhold consent to restrictive practices used to influence James’s behaviour.

g) Other Function

Surveillance: To decide whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he is refusing to allow support workers to remain on the premises.

Legal function re forensic sample request: To access legal advice and respond on James’ behalf regarding the request from NSW Police for him to provide a DNA sample.

AUTHORITY:

5. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of James to major or minor medical treatment.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring James to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) NDIS Restrictive Practices Condition

The guardian(s) may only consent to the use of restrictive practices to influence James’s behaviour:

(i) as a last resort to prevent James harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon James, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – 54-year-old subject person with acquired brain injuries – subject to guardianship and financial management orders since 2013 – forensic sample request made by NSW Police - request for review of guardianship orders – subject person remains a person for whom a guardianship order could be made – confirmation of functions included in previous order – whether subject person is an ‘incapable person’ for the purposes of s 75G of the Crimes (Forensic Procedures) Act 2000 (NSW) – professional assessment may be necessary – order varied to include a legal function relating to forensic sample request – restrictive practices – order varied to include a restrictive practices function – not satisfied that installation of monitoring equipment constitutes a restrictive practice – monitoring equipment is an invasion of privacy – order varied to authorise determination of whether monitoring equipment should be used – Public Guardian reappointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 46A

Crimes (Forensic Procedures) Act 2000 (NSW) ss 3, 5, 75A, 75G, 75L; Pts 5, 7A

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

016: Requested Review of Guardianship Order

James (the person)
Bianca (applicant for review)
Public Guardian (appointed guardian)

Representation:

Nil.

File Number(s):

NCAT 2013/00391652

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

1. James is a 54-year-old man who lives in his own home in regional NSW and receives services from a healthcare service provider. He sustained an acquired brain injury in 1983 as a child when he was hit by a motor vehicle while riding a bicycle and a further brain injury from a fall in 2013 as an adult. James required a right arm amputation after an inadvertent intra-arterial injection caused gangrene. He is a participant in the National Disability Insurance Scheme (NDIS).

2. James’ mother died in 2013, and he has no other known relatives. He has a history of incarceration after assaulting a police officer and another person, and reported behaviours of concern, including aggression.

3. James has been known to the Tribunal since 2013. Management of his estate was first committed to the NSW Trustee and Guardian on 22 July 2013 when a guardianship order was also made appointing the Public Guardian for 12 months.

4. At a hearing on 14 July 2014, the Tribunal revoked both the guardianship and financial management orders for James. Further applications for both guardianship and financial management were made in 2017 and dismissed. An application for guardianship made in 2020 was also dismissed.

5. On 19 October 2023, the Tribunal made a guardianship order for James appointing the Public Guardian for 12 months. At that time, he was an inpatient at a public hospital following a fall from stairs at his home resulting in a long lie. The hearing of a financial management application was adjourned until 3 November 2023, when it was dismissed.

6. On 4 January 2024, following a further application for financial management, the Tribunal committed management of James’ finances to the NSW Trustee and Guardian and ordered a review within 12 months.

7. On 10 October 2024, the Tribunal reviewed both the guardianship and financial management orders. The Public Guardian was reappointed as James’ guardian with the functions of accommodation with the authority to ‘authorise others’, health care, medical and dental consents, and services. The order provides authority under s 46A of the Guardianship Act 1987 (NSW) (Guardianship Act) for the guardian to override James’ objections to medical and dental treatment. The Tribunal confirmed the financial management order made on 4 January 2024, and did not order a further review of that order.

8. On 20 January 2025, James’ NDIS support coordinator, Ms Bianca, requested a review of the guardianship order with a view to a ‘forensic and legal services function’ being added.

The hearing

9. At the end of these Reasons for Decision are lists of the parties to the review and the witnesses who attended the hearing. [Appendix removed for publication.]

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

10. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

11. The questions to be considered by the Tribunal are:

• Is James someone for whom the Tribunal could make an order because he continues to have a disability that prevents him from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is James someone for whom the Tribunal could make a further order because he continues to have a disability that prevents him from being able to make important life decisions?

12. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who, because of a disability, is totally or partially incapable of managing his or her person”: Guardianship Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

13. When the most recent guardianship order was made on 10 October 2024, the Tribunal was satisfied that James has disabilities arising from his traumatic brain injuries and is a person for whom a guardianship order could be made. There is no evidence before the Tribunal to refute this and we were satisfied James remains a person for whom a further guardianship order could be made.

Should the Tribunal make a further guardianship order and if so, what order should be made?

14. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

3. the importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

15. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

16. In the application for review lodged by Ms Bianca on 20 January 2025, it is stated that:

“DNA test required for police matter due to [James'] previous forensic history. Police project requiring updated forensic details on previous offenders and require this from [James]. The public guardian is currently unable to make any consent decisions as they do not have these functions and [James] is unable to provide informed consent himself.”

17. A copy of a letter dated 16 October 2024 from a Senior Constable of a regional NSW police station to James was provided to the Tribunal. It states that James has:

“…been identified as an Untested Former Offender under the Crimes (Forensic Procedures) Act 2000, Section 75A.

…

It appears that your DNA profile is not contained on the Offenders Index of the DNA database System.

As a result of this situation, we are requesting that you consent to a non intimate forensic procedure by way of a self-administered buccal swab or alternatively, the taking of a hair sample.

…

If you do not consent, an application for a court order will be made and failure to comply with that order is an offence for which you may be arrested and charged. Further failure to comply may lead to an application for an arrest warrant to allow the procedure to be undertaken.”

18. In a letter dated 12 December 2024, Mr Andrew, senior behaviour support practitioner, states that:

“…I am requesting the following be added to his guardianship orders:

(1)    Forensic decisions —This is warranted to ensure James receives proper support in navigating the legal system. It ensures that his rights are protected, decisions are made in his best interest, particularly because he has little insight and understanding in legal proceedings.

(2)    Legal decisions —This is warranted due to the complexity of the legal process, which can be difficult to navigate. Without appropriate support, the complexity of the legal process could lead to James not being adequately represented and treated unfairly within the legal system.

(3)    Restrictive practice authorisation — This is warranted to ensure the use of restrictive practices are necessary, proportionate, and in his best interest.”

19. The Tribunal received a second letter from Mr Andrew, dated 7 March 2025, in which he requests the addition of a restrictive practices function to the guardianship order because he is seeking to implement environmental restraints and seclusion for James. Mr Andrew states that the restrictive practices that he would like to implement are: the locking of the front door and a perimeter gate; ‘monitoring at a distance’, which he submits constitute environmental restraint; and, ‘staff locking themselves in office’ which he submits constitutes seclusion.

20. During the hearing, Mr Andrew told the Tribunal that James has declined to provide a DNA sample as requested by NSW Police. Mr Andrew asked the Tribunal to provide the Public Guardian with authority to decide whether a DNA sample should be provided by James.

21. In relation to the addition of a restrictive practices function to the guardianship order, Mr Andrew told the Tribunal that James lives in a property that he owns but it is deemed to be unliveable. Consideration is being given to James moving into supported independent living (SIL) accommodation. There are serious concerns about his safety while he remains in his current accommodation, and it is proposed that the top storey of the property be boarded off to prevent him accessing it. Mr Andrew noted that James is required to sit behind the front passenger seat of a vehicle when being transported. He is not required to wear a harness, and a belt buckle guard is not used.

22. Ms Sarah is an occupational therapist who has assessed James. She informed the Tribunal that the NDIS has declined additional funding for specialist disability accommodation for James because he owns his own property, notwithstanding that it is considered unliveable. This decision is being appealed but there are immediate concerns about James’ risk of falling and injuries, and it is therefore proposed that the stairs to the top storey of his house be blocked off. If James is relocated to SIL accommodation, there will be a need for him to be subject to environmental restraints, such as locked doors to contain him.

23. Ms Sarah stated that James refuses to allow overnight support staff to remain inside his house, despite often needing assistance. A variation of the guardianship order to allow surveillance equipment to be installed in his residence is sought. This would enable staff to monitor James from a vehicle outside his residence and enter to assist him if required.

Confirmation of functions included in the order made on 10 October 2024

24. On 10 October 2024, the Tribunal made a guardianship order with the following functions: accommodation with the authority to ‘authorise others’; health care; medical and dental consents; and services. The order provided authority under s 46A of the Guardianship Act for the guardian to override James’ objections to medical and dental treatment.

25. We were satisfied that it remains in James’ best interest for the Public Guardian to continue to make decisions about these areas of his life for the reasons set out in the Reasons for Decision from the hearing on 10 October 2024.

Decision regarding request for DNA sample

26. The letter from NSW Police states that the request for a DNA sample is made under s 75A of the Crimes (Forensic Procedures) Act 2000 (NSW) (Crimes (FP) Act). This section is within Pt 7A of the Crimes (FP) Act, which also provides at s 75G of that Act that:

75G Police officer may request untested former offender to consent to forensic procedure

A police officer may request an untested former offender (other than a child or an incapable person) to consent to a forensic procedure to which this Part applies being carried out on the former offender.

27. The Crimes (FP) Act defines ‘incapable person’ in s 3 as an adult who:

3 Interpretation

…

(a)    is incapable of understanding the general nature and effect of a forensic procedure, or

(b)    is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.

28. Section 5 of the Crimes (FP) Act states that authority for forensic procedures in relation to an incapable person is by order of a Magistrate or an authorised officer under Pt 5 of that Act. Authorised officers are defined as registrars of the Local Court and authorised employees of the Attorney General’s Department, in addition to Magistrates and Children’s Magistrates.

29. Although he is subject to a guardianship order, it is unclear to the Tribunal whether James is an ‘incapable person’ as defined above. He stated very clearly during the hearing that: ‘I am not a criminal’ and does not want to provide a DNA sample. Whether he understands the consequences of complying or not with the request was not clear.

30. It may be necessary for the Public Guardian to arrange an assessment of whether James is incapable of ‘understanding the general nature and effect of a forensic procedure’ from a suitable health professional. The Public Guardian has authority to consent to such an assessment on James’ behalf under functions previously granted.

31. If James is deemed to be an incapable person who cannot be asked to consent to the procedure to which Pt 7A of the Crimes (FP) Act applies, then logically, the Public Guardian, as a substitute decision-maker, cannot consent to something that cannot be asked for. Authority would need to be sought by NSW Police by order of a Magistrate or authorised officer under Pt 5 of the Crimes (FP) Act.

32. If James is not deemed to be an incapable person and continues to refuse to provide a DNA sample, presumably NSW Police may then decide to seek a court order under s 75L of the Crimes (FP) Act.

33. We decided to vary the guardianship order made on 10 October 2024 to include a legal function relating to the forensic sample request so that the issues outlined above can be resolved.

34. The Public Guardian is authorised to access legal advice and respond on James’ behalf to the request from NSW Police regarding the DNA sample. As noted above, the Public Guardian has authority under functions previously granted to arrange an assessment of James’ understanding of ‘the general nature and effect of a forensic procedure’ to determine whether he is an incapable person or not.

Decision regarding restrictive practices and video monitoring equipment

35. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguarding Commission (NDIS Commission) and are responsible for ensuring that consent and authorisation is obtained for the use of all restrictive practices.

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

1. Seclusion, which is the sole confinement of a person with a disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted.

2. Chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.

1. Mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour, but does not include the use of devices for therapeutic or non-behavioural purposes.

2. Physical restraint, which is the use of action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.

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

37. After considering the evidence, we were satisfied that the locking of the door and gates at James’ residence, and staff locking themselves in the office away from James, constitute restrictive practices for which the consent of a guardian is required. We varied the guardianship order to include a restrictive practices function.

38. We were not satisfied that the installation of monitoring equipment constitutes a restrictive practice. The installation of monitoring equipment is, however, an invasion of James’ privacy and should not take place unless it is overseen by a guardian charged with ensuring it is the least restrictive alternative and in James’ best interest. We therefore included an additional function in the guardianship order authorising the Public Guardian to determine whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he is refusing to allow support workers to remain on the premises.

Who should be appointed as the guardian?

39. The Public Guardian was appointed as James’ guardian on the last occasion. As there is no private person available to be appointed as guardian, we reappointed the Public Guardian.

How long should the order last?

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

41. We decided to make an order for two years because James has complex needs and there was evidence that participating in hearings is stressful for him.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 April 2025