KNL (Request for Emergency Guardianship)

CITATION:	KNL (Request for Emergency Guardianship) [2021] TASGAB 40
HEARING DATE(S):	25 August 2021
DATE OF ORDERS:	25 August 2021
DATE OF STATEMENT OF REASONS:	27 August 2021
BOARD:	Ms V Jones, Member
APPLICATION	Emergency Guardianship Order
CATCHWORDS:	Emergency Guardian request – urgency – restrictive practice in aged care – lowering of bed – legislative changes operative from 1 July 2021 - disability and capacity – no medical evidence
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, 65 Aged Care Act 1997 (Cth)
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 25 August 2021, the Guardianship and Administration Board (‘the Board’) dismissed a Request for an Emergency Guardianship Order for KL.
KL is an 80 year old lady who lives in [the aged care facility], a residential aged care facility operated by Uniting AgeWell in [southern Tasmania].
The Applicant is KL’s husband, SL (‘the Applicant’).
On its own motion the Board has published this Statement of Reasons.

Legislation

Part 8, section 65 of the Guardianship and Administration Act 1995 (‘the Act’) gives the Board the power to make orders if urgent circumstances exist, providing the Board is satisfied there may be grounds for making an order. Section 65 provides:
(1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.

(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –

(a) the Public Guardian as his or her guardian; or

(b) the Public Trustee as administrator of his or her estate –

and in either case the Board may make any order or give any direction considered appropriate in the circumstances.

.....

(4) In the exercise of its powers under this section –

(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and

(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and

...

(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.

6.Section 20 of the Act provides the grounds for making a guardianship order:
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –

(a) is a person with a disability; and

(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and

(c) is in need of a guardian –

the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.

Further, section 6 of the Act sets out the underlying principles of the Act:
A function or power conferred, or duty imposed, by this Act is to be performed so that –

(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and

(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Evidence and Determination

The Request for an Emergency Guardianship Order was accompanied by:
a.Power of Attorney No PA XXXXX X;
b.Medical Progress Notes;
c.File notes in relation to directed enquiries made by the Board Registry, dated 24 and 26 August 2021.

Urgency

The Request states urgent circumstances exist because KL, who is a resident of [the aged care facility], a residential aged care facility (‘RACF’), needs her bed lowered to the floor to prevent her from falling out of bed, and there has been a change in legislation which requires the approval of the Board by 1 September 2021 for the practice to continue.
The Request provides KL needs a guardian because ‘she needs authority to allow [the RACF] to lower her bed at night to prevent falls. If she does not have this authority she will have to sleep in a bed at normal height and will be in danger of falling out, and have a substantial risk of injury’. The Medical Progress Notes provide evidence of KL having suffered two falls as a result of rolling out of bed, one around 10 July 2021, and the other on 3 August 2021.
Inquiries were directed to be made by the Board Registry of the RACF. The Board was informed KL became a care recipient of the RACF on 20 June 2021, and the practice of lowering her bed began ‘within the last couple of weeks’ because KL had a fall from her bed, and the doctor agreed it was in her best interests.
The ‘change in legislation’ to which the Applicant refers are amendments to the Aged Care Act 1997 (Cth) and Quality of Care Principles 2014 (Cth) and relate to the use of restrictive practices in aged care (‘the Revised Legislation’). The Revised Legislation took effect from 1 July 2021, and amongst other things, defines restrictive practices; details the requirements for the use of restrictive practices; reinforces the rights of aged care consumers by ensuring that restrictive practices are only used as last resort to prevent harm after best practice behaviour supports have been considered, applied and documented; and requires the provider as of 1 September 2021 to have a behaviour support plan in place for each consumer who has restrictive practices considered, implemented or used as part of their care.[1] The evidence before the Board establishes KL is an aged care consumer.[2]
[1] Australian Government, Aged Care Quality and Safeguards Commission, Overview of Restrictive Practices, Overview of restrictive practices (agedcarequality.gov.au)
[2] Quality of Care Principles 2014, s4A Consumer means a person to whom an approved provider provides, or is to provide, care through an aged care service.
The lowering of KL’s bed may be considered a restrictive practice, in the form of a mechanical restraint. A mechanical restraint is defined in the Aged Care Act 1997 as ‘a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a consumer’s movement for the primary purpose of influencing the consumer’s behaviour’. It does not include the use of a device for therapeutic or non-behavioural purposes in relation to the consumer. The Aged Care Act 1997 provides a number of requirements for the use of any restrictive practice in relation to an aged care consumer.[3] They include:
• Restrictive practices must only be used as a last resort to prevent harm to the consumer or other persons, and after consideration of the likely effect on the consumer.
• An approved health practitioner who has day to day knowledge of the consumer, has assessed the consumer as posing a risk of harm to themselves or another person, and has assessed the restrictive practice as necessary, and these assessments have been documented.
• Best practice alternative behaviour support strategies have been used, and the consideration and/or use of these strategies and their effect has been documented.
• Restrictive practices must only be used in proportion to the risk of harm, in the least restrictive form, and for the shortest period possible.
• The need for, use of, and effectiveness of restrictive practices must be continually monitored, reviewed and documented. As part of this, providers must consider whether an individually appropriate alternative strategy can be used and the restrictive practice can be reduced or stopped. In the case of a restrictive practice that is chemical restraint, providers must also give information about the effects and use of the chemical restraint to the prescribing practitioner.
• Informed consent for the use of a restrictive practice must be obtained from the consumer. If the consumer does not have the capacity to give that consent, it must be obtained from their restrictive practice substitute decision-maker. Providers must ensure that consent has been obtained in accordance with state and territory requirements and subsequently recorded.
• The use of the restrictive practice must comply with the Charter of Aged Care Rights and Quality Standards, the requirements (if any) of the law of the State or Territory in which the restrictive practice is used, as well as any relevant provisions of the consumer’s care and services plan, or behaviour support plan from 1 September 2021.
[3] Australian Government, Aged Care Quality and Safeguards Commission, Overview of Restrictive Practices, Overview of restrictive practices (agedcarequality.gov.au)
The evidence before the Board is that the lowering of KL’s bed began ‘within the last couple of weeks. ’ It is not known whether this is now occurring daily.
There is no material before the Board upon which a determination could be made about whether the lowering of KL’s bed is a restrictive practice or is for a therapeutic or non-behavioural purpose.
It is not clear under what legal authority the lowering of KL’s bed has occurred to date. The Request mentions a ‘signed disclaimer’ which the Board has not seen. It is unclear whether the ‘signed disclaimer’ relates to the use of a restrictive practice, and if it does, the legality of such a disclaimer. If a restrictive practice is being used in relation to a consumer under the Aged Care Act 1997, the legislative requirements specify informed consent must be obtained from the consumer, that is, KL. If KL is unable to give informed consent, then consent must be obtained from a ‘restrictive practice substitute decision maker’. That a doctor considers it in KL’s best interests does not amount to consent. It may be that the lowering of KL’s bed has occurred pursuant to the overriding duty of care the RACF provider has to all care recipients, or pursuant to provisions in the Aged Care Act 1997 which allows for use of restrictive practices in the event of an emergency.[4]
[4] Australian Government, Aged Care Quality and Safeguards Commission, Overview of Restrictive Practices, Overview of restrictive practices (agedcarequality.gov.au)
There is no evidence before the Board as to why the Request is now urgent, given the legislative changes set out above have been operative from 1 July 2021. Further, it is not clear why an Application for Guardianship has not been lodged with the Board if indeed the RACF is using a restrictive practice in relation to KL and if KL is unable to give informed consent to its use.
There is no evidence from the RACF who are providing residential aged care to KL. In particular, there is no evidence from the RACF that KL’s bed is lowered to prevent, restrict or subdue KL’s movement for the primary purpose of influencing her behaviour; as a last resort to prevent harm to her; that an approved health practitioner has assessed KL as posing a risk to herself and assessed the restrictive practice as necessary; and best practice alternative behaviour support strategies have been used, and the consideration and/or use of these strategies and their effect has been documented. These are significant issues which need appropriate consideration.
There is also no evidence to indicate whether there is a behaviour support plan for KL albeit the Board notes that it is not a statutory requirement before 1 September 2021. A behaviour support plan is an important guide for staff of a RACF regarding the use of a restrictive practice/s at a RACF.
A substantive application for Guardianship has not been filed but it may be the appropriate course for full consideration to be given to the appointment of a Guardian for KL.
The Board is not satisfied on the evidence before it that urgent circumstances exist as required by s65(1) of the Guardianship and Administration Act 1995.

Statutory criteria, s20

The Board also considers the statutory criteria in section 20 of the Act, that is whether KL may have a disability, and if so, whether by reason of disability she is unable to make reasonable judgements in respect of decisions pertaining to the use of restrictive practices, and whether there is a need for a guardian.
The Request states KL has a disability, namely dementia and immobility.
As noted above, the Medical Progress Notes provide evidence of KL suffering two falls recently, but no evidence of disability.
The Board is not persuaded on the evidence presented that KL may have a disability as defined by the Act.
The Request states KL has limited mental capacity, and until now it has been sufficient for the RACF to rely on a disclaimer signed by the Applicant and the [KL’s] GP.
There is no medical evidence before the Board that KL may be unable to make reasonable judgments about her person or circumstances. Capacity is decision specific, and specifically there is no medical evidence before the Board that KL may be unable to make reasonable judgments about specific decisions, such as restrictive practices.
The Board is not satisfied that KL may be unable to make reasonable judgements.
As to need for a guardian, if the lowering of KL’s bed is considered a restrictive practice, and KL is unable to consent to the practice, KL may require a Guardian with a power to make decisions as to the use of a restrictive practice.

Decision

The Guardianship and Administration Board orders that the Request for an Emergency Guardianship Order is dismissed.

[2021] TASGAB 40

25 August 2021