KKD

[2019] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

KKD [2019] NSWCATGD 4

Hearing dates:

21 January 2019

Date of orders:

21 January 2019

Decision date:

21 January 2019

Jurisdiction:

Guardianship Division

Before:

J Claridge, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

1. A guardianship order is made for KKD.

 

2. TMW of [Appendix removed from publication.] is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of one year from 21 January 2019.

 

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

 

FUNCTIONS:

 

5. The guardian has the following function:

 

a) Restrictive Practices

 

To make decisions about the following restrictive practices as outlined in KKD’s Interim Behaviour Support Plan dated 9 November 2018:

 

Environmental restraint: restricted access to kitchen including refrigerator to prevent excessive consumption of food and drinks;

 

Environmental restraint: locked doors and gates to prevent KKD leaving to engage in food seeking behaviours; and

 

Chemical restraint: routine use of psychotropic medication.

 

CONDITIONS:

 

6. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian may only consent to:

 

i) Restriction of KKD’s freedom of movement;

 

ii) The administration of psychotropic medication; or

 

iii) Other restrictive practices

 to address challenging behaviours within the context of the implementation of a comprehensive positive behaviour intervention and support plan (or within the context of positive programming addressing KKD’s lifestyle and skills development needs).

Catchwords:

GUARDIANSHIP – application for a guardianship order – functions of guardian – guardianship order made – appointment of a private guardian

  RESTRICTIVE PRACTICES – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint – environmental restraint

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1), 18(1)
National Disability Insurance Scheme Act 2013 (Cth), s 9
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

009: Guardianship Application

  KKD (the person)
TMW (applicant)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2004/00262556

Publication restriction:

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

REASONS FOR DECISION

Background

1. KKD is 44 years old and lives in a group home in Northwest Sydney.

2. He is supported by his mother, TMW.

3. It is reported that KKD has an intellectual disability and autism spectrum disorder.

4. On 9 March 2017, the NSW Trustee and Guardian was appointed to manage KKD’s estate.

5. On 22 November 2018, the Tribunal received an application for guardianship for KKD from TMW.

Written evidence

6. Accompanying the application is support strategies document dated 9 September 2017, behaviour support plan dated 30 November 2018 and lifestyle planning minute dated 19 November 2018.

7. We also had the benefit of reasons for decision for orders made 9 March 2017 and 13 May 2015.

GUARDIANSHIP

8. In determining an application for guardianship, the Tribunal must consider:

• Is the person who is the subject of the application someone for whom the Tribunal could make an order because he/she has a disability which prevents him/her from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is KKD someone for whom the Tribunal could make an order?

9. By s 14(1) of the Guardianship Act 1987 (NSW) (‘the Act’) we have power to make a guardianship order for a person if we are satisfied that he/she is “a person in need of a guardian”.

10. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: s 3(1) of the Act. The disability must restrict a person in one or more major life activity to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.

11. The behaviour support plan states that KKD has a severe intellectual disability and autism. The plan states that Dr Z reported in 2009 that KKD has high levels of anxiety and reactive aggression. The plan further states that KKD is generally happy and calm. However, when affected by his environment or internal triggers he will pace, follow staff, raise his voice, grind his teeth, become restless and begin to rock. KKD may engage in self-injurious behaviour and physical aggression towards others when extremely anxious.

12. Previous Tribunals have found that KKD has an intellectual disability and autism spectrum disorder.

13. There is no evidence to contradict the available professional evidence and the reported observations of KKD’s mother and support staff. KKD has an intellectual disability and autism spectrum disorder which restrict KKD in at least one major life activity to such an extent that he requires supervision. We are satisfied that KKD is a “person in need of a guardian”.

Should the Tribunal make a guardianship order and what order should be made?

14. Before making a guardianship order, we must have regard to all of the following matters set out in s 14(2) of the Act:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

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

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. Additionally we must observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict KKD’s freedom of decision making and freedom of action as little as possible. As far as possible we should enable KKD to be self-reliant in matters relating to KKD’s personal, domestic and financial affairs. At the same time, we must also aim to protect KKD from neglect, abuse and exploitation. The paramount consideration at all times is KKD’s welfare and interests.

16. We note that KKD is non-verbal and attended the hearing by telephone. Team leader Mr Y advised that KKD would not understand the nature of the proceedings. This was confirmed by TMW. We were therefore unable to obtain any views from KKD.

17. We have been asked to appoint a guardian with authority to consent to certain practices described as restrictive practices in a behaviour management plan for KKD.

18. The Act does not define restrictive practices.

19. Generally, however, a restrictive practice has been viewed as any practice or intervention that restricts a person’s rights, freedom of movement or access to objects. Restrictive practices are generally used to manage challenging behaviour.

20. The application has been brought today as a result of the introduction of the National Disability Insurance Scheme (NDIS) and the implementation of the NDIS Quality and Safeguarding Framework (Framework), which underpins that scheme.

21. Under the Framework, states and territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners.

22. Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practices as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’.

23. Since 1 July 2018, registered NDIS providers in NSW are regulated by the NDIS Quality and Safeguards Commission and are responsible for ensuring that proper consent is obtained for the use of restrictive practices.

24. Rule 6 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) states that a restrictive practice is a regulated restrictive practice if it involves, relevantly for today’s hearing:

1. 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;

2. environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities.

25. In determining if a practice is a restrictive practice for which informed consent is required we must balance the right to autonomy of the person with the need to manage challenging behaviours in the interests and welfare of that person. We consider these practices in light of the lawfulness of the practice as well as the context, nature, degree and purpose of the restrictions to ensure that the person’s rights are not breached.

26. We were provided with a behaviour support plan prepared for KKD, which indicates that there have been and are a number of restrictive practices being used in relation to his care, some of which are no longer in use. Of relevance to today’s hearing are:

• restricted access to the kitchen at the group home where he lives, including to the cupboards and the refrigerator;

• locking the front and back doors and front gate;

• use of psychotropic medications on a routine basis.

27. It is reported that KKD does not know how to regulate his eating and drinking. KKD is restricted from accessing food and fluids from the kitchen at the group home and is closely supervised when in the community. KKD’s access to tea and coffee is strictly regulated so that he does not consume excessive amounts of caffeine. His dietician has made recommendations and his speech pathologist has developed a meal time management plan. The kitchen cupboards and refrigerator are both locked.

28. These practices are put in place specifically to manage KKD’s food seeking behaviours and if not regulated he will not know when to stop eating and drinking. This limited access to the kitchen and the cupboards and refrigerator in the kitchen restricts KKD’s freedom of movement within his home environment. We accept that this practice is a regulated environmental restraint for which informed consent is required.

29. Mr Y states that the front gate and external doors are locked restricting KKD’s freedom of movement to and from his group home. These measures have been put in place as KKD will attempt to leave in search of food and can become physically aggressive towards others.

30. Mr Y stated that KKD will take food from rubbish bins. He can become very ill or choke if his access to food is not restricted. Mr Y stated that KKD had put on 17 kilograms over about one year. However, he has since reduced his weight by eight kilograms and it is now at an acceptable level. TMW agreed, stating that her son obsesses about food and will eat anything.

31. Mr Y also stated that KKD has no awareness of road safety. He stated that when KKD is on outings, staff must remain close to him as KKD will take food from strangers.

32. These practices restrict KKD’s access to part of his home environment and to and from his home environment. These practices are put in place specifically for KKD and are lifted when he is not at home. We consider that these restrictions on KKD meet the criteria for environmental restraint, a restrictive practice for which informed consent is required.

33. KKD is given Quetiapine, a psychotropic medication, each day to assist to stabilise his behaviour, including to calm and reduce repetitive and obsessive behaviour. KKD is also given Lithicarb to treat anxiety.

34. The primary purpose of giving KKD Quetiapine is to influence his behaviour and not to treat a diagnosed condition. We consider the use of medication for this purpose is a chemical restraint requiring informed consent.

35. We have decided that it is in KKD’s interests to make a guardianship order, giving the appointed guardian the authority to make decisions about the use of the following restrictive practices employed to manage KKD’s behaviour, as described in his behaviour support plan:

• restricting access to the kitchen at the group home where KKD lives, including locking cupboards and the refrigerator;

• locking of external doors and gates at the group home where KKD lives;

• use of psychotropic medication.

Who should be appointed as the guardian?

36. We have to be satisfied that any person appointed as a private guardian meets the following requirements under s 17(1) of the Act. He/she must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person and

3. be able and willing to exercise the functions of the order.

37. We are not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: s 15(3) of the Act.

38. The applicant proposes that she be appointed as KKD’s guardian.

39. TMW is Person Responsible for her son. She stated that she gets regular reports from doctors and has been to appointments when the dosage of mediations is discussed. She has regular contact with him and understands his needs. TMW stated that her son moved to his current group home three years ago and that is very suitable for him and meets his needs.

40. TMW stated that she is both willing and able to act as her son’s guardian.

41. Both Mr Y and Mr X support the appointment of TMW. Mr Y stated that TMW is a good support for her son.

42. We are satisfied that TMW meets the requirements to be appointed KKD’s guardian.

How long should the order last?

43. An initial continuing guardianship order can generally be made for a period not exceeding 12 months: s 18(1) of the Act.

44. Mr Y stated that it is hoped that some of the restrictions on KKD can be lifted bit by bit. We have decided to make a 12-month reviewable order.

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

Registrar

Amendments

12 February 2019 - At CATCHWORDS section:

"guardianship order" to "guardianship order made"

Decision last updated: 12 February 2019