KQL

[2023] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KQL [2023] NSWCATGD 15

Hearing dates:

4 September 2023

Date of orders:

4 September 2023

Decision date:

04 September 2023

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member

Decision:

The guardianship order for KQL made on 24 March 2023 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 three years from 24 March 2023.

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

FUNCTIONS:

4.   The guardian has the following functions:

a)   Medical/Dental consent

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

b)   Services

To make decisions about services to be provided to KQL.

c)   Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence KQL’s behaviour:

1.   Environmental restraint

2.   Mechanical restraint

CONDITIONS:

5. The conditions of this order are:

a)   Standard Condition

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

b)   NDIS Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KQL’s behaviour:

(i)   as a last resort to prevent KQL harming themself 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 KQL, 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 – application to vary a guardianship order – restrictive practices – subject person is a participant in the NDIS – proposed use of mechanical restraint – use of a seatbelt buckle cover when travelling in a motor vehicle – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 – finding that the proposed use of the mechanical restraint is for the primary purpose of influencing the subject person’s behaviour – need for mechanical restraint to be added to restrictive practices function – order varied

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 25(2)(a), 25C(1)

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

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

021: Requested Review of Guardianship Order

KQL (the person)
LZC (applicant)
Public Guardian (appointed guardian)

Representation:

Nil.

File Number(s):

NCAT 1994/00064616

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

Summary of proceedings

1. KQL is a 63-year-old woman who is a National Disability Insurance Scheme (NDIS) participant and lives in supported accommodation in Inner West Sydney managed by a disability service provider.

2. At a hearing on 24 March 2023, the Tribunal renewed a guardianship order and reappointed the Public Guardian as KQL’s guardian with decision making authority about her medical and dental treatment, services and the use of restrictive practices in the form of environmental restraint.

3. The order was made for a three-year period.

4. On 20 July 2023, the Tribunal received an application to review the guardianship order from LZC, an employee of the disability service provider (the review application). The review application sought a variation of the guardianship order so as to add the function of mechanical restraint to the types of restrictive practices contained in the order.

5. At a hearing conducted on 4 September 2023 (the review hearing), I considered the review application and decided to vary the order to add the additional form of restraint sought by LZC.

6. In all other respects the guardianship order remained the same as made on 24 March 2023.

Overview of evidence provided at the review hearing

7. The review application and supporting material sought to add to the current guardianship order the authority for the Public Guardian to give or withhold consent to the use of a seatbelt buckle cover when travelling in a motor vehicle.

8. LZC gave evidence that when KQL travels in vehicles, for example, to travel to and from her community and day programs, she has a history of undoing her seatbelt, moving towards the driver or other passengers and pulling their hair. This has been recorded as occurring approximately five times over the last six months.

9. A behaviour support plan dated April 2023, prepared by Ms Z, in summary outlines the following information relevant to this issue:

• A functional behaviour assessment has identified impulsivity as a major behaviour of concern for KQL. This expresses itself when she travels by screaming, throwing things, changing seats and taking her belt off when in a van

• Dr Y, KQL’s treating psychiatrist, has expressed the opinion that due to her diagnosis of “intermittent explosive disorder” KQL will “continue to require the seatbelt buckle guard indefinitely”

• KQL responds well to 1:1 support and can find it difficult when she does not have this support and when she must share a support staff with another person. Her behaviours of concern often present themselves when this occurs.

• The proposed restrictive practice described in the behaviour support plan was a “harness to replace seat belt”. However, at the hearing the participants described the restraint as a “seat belt buckle cover”.

10. KQL was present on the videoconference during the review hearing but was not able to provide a view about the proposed change to the guardianship order.

Consideration

11. When conducting a requested review pursuant to s 25(2)(a) of the Guardianship Act 1987 (NSW), the Tribunal may vary, suspend or revoke, or confirm the guardianship order: Guardianship Act, s 25C(1).

12. At the hearing on 24 March 2023 when the guardianship order was renewed for a period of three years, the Tribunal was satisfied that:

1. KQL was a person for whom a further guardianship order could be made. The Tribunal on that occasion was satisfied based on the material presented that due to her moderate to severe intellectual disability and autism spectrum disorder (level 3), KQL was prevented from making important life decisions and a guardianship order could be made for her ([13]-[16]).

2. The renewed guardianship order should include the functions of medical and dental treatment, services and restrictive practices in the form of environmental restraint ([30]-[35]).

3. There was no private person available to be appointed as KQL’s guardian and the Public Guardian was reappointed as guardian [36].

13. There was no contest about any of these matters at this hearing and I was independently satisfied of each of these matters on the basis of the available evidence.

14. The real issue in the proceedings was whether the guardianship order should be varied to add mechanical restraint to the list of restrictive practices contained in the order.

15. Taking into account the matters discussed at (1)-(4) below and having regard to the principles set out in s 4 of the Guardianship Act, I decided to vary the order as requested:

1. The proposed restraint falls within the definition of a “regulated restrictive practice” in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) namely it is a 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”. Excluded from this definition is the “use of devices for therapeutic or non-behavioural purposes”. I was satisfied that the proposed use of mechanical restraint to restrain KQL when she travels in a vehicle, whether in the form of a seat buckle guard or a harness, is for the primary purpose of influencing her behaviour.

2. Due to the extent of her impaired decision-making disability as a result of her intellectual disability, KQL is not able to provide her own consent to the use of this restraint. The use of the restraint requires the consent of a guardian in the absence of KQL being able to provide her own consent

3. Varying the order as requested, in my view, gives paramount consideration to KQL’s welfare and interests as she will be able to continue to travel in a safe manner to community and other activities. Although the use of the restraint is on one view an imposition on aspects of KQL’s personal autonomy as she will be unable to release it on her own when a vehicle in which she is travelling has reached its destination, without this measure in place service providers will be unwilling to transport her due to the obvious safety issues.

4. The Public Guardian supports for the requested variation of the order, as conveyed by the representative of the Public Guardian.

16. I made no changes to the length of the guardianship order under review. It therefore continues for period of three years from 24 March 2023.

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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

Decision last updated: 09 October 2023