KWT - [2024] NSWCATGD 11

No judgment structure available for this case.

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KWT [2024] NSWCATGD 11
Hearing dates: 21 May 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Jurisdiction: Guardianship Division
Before: A Britton, Deputy President
Dr M J Corr, Senior Member (Professional)
S Bullock, General Member (Community)
Decision:
In relation to the enduring guardian appointment made by KWT on 21 May 2024 appointing BCJ the Tribunal orders:
The functions of the enduring guardian are varied to include restrictive practices, subject to the condition below:
Aged Care Restrictive Practices Condition
The enduring guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KWT’s behaviour:
(i)   as a last resort to prevent KWT harming themself or others; and
(ii)   where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KWT or other persons;
(iii)   after consideration of the likely impact of the use of the restrictive practice on KWT; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to KWT’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KWT’s circumstances.

Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – request to add restrictive practices function – principal with severe Alzheimer’s dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the enduring guardian and substitute enduring guardian are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made

Legislation Cited:
Aged Care Act 1997 (Cth), ss s 54-1(f), 54-9(1)
Guardianship Act 1987 (NSW), ss 3, 3(1)-(2), 4, 4(a), 6A(1)(a), 6D(3), 6E(1)(a)-(e), 6I(1), 6K(1)(b), 6K(3)(a), 17(1), 17(1)(c); Pt 2
Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g)

Cases Cited:
None cited.

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Guardianship Appointment
KWT (the person)
FZS (applicant)
BCJ (enduring guardian and spouse)
NSW Trustee and Guardian
NSW Public Guardian
Representation: Nil.

File Number(s): NCAT 2024/00051358
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

In July 2023, KWT appointed her husband, BCJ, as her enduring guardian, and her son, Mr Z, as substitute enduring guardian. In the instrument of appointment (the EGA), KWT authorised her husband to decide where she lives, the health care and other kinds of personal services she receives, and to consent to the carrying out of medical and dental treatment. On the same day, KWT executed an enduring power of attorney appointing her husband as attorney and her son as substitute attorney.
In February 2024, the Care Service Manager of a residential aged care facility, FZS, made an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) seeking that the EGA be varied to include a "restrictive practices" function (the Application). BCJ and Mr Z support that application.
In the Application, FZS stated that there was a need to review the EGA because "we need a person appointed to consent on [KWT's] behalf to environmental restraint".
Until October 2023, KWT was living in the family home with her husband. She moved to the aged care facility in October 2023, initially on a respite basis. On the recommendation of her treating practitioners, BCJ decided that his wife should reside permanently in the aged care facility because her care needs had increased to such an extent that he could no longer provide her with the level of care and support she required to remain living at home.
For the reasons that follow, we decided to amend the EGA to add a restrictive practices function.
All references in these reasons to " Mr [Name removed for publication.]" are to BCJ.

Participation of KWT

KWT did not participate in the hearing to determine the Application. In a report prepared for these proceedings dated 14 May 2024, an NCAT Registry officer wrote that when the report was prepared they had attempted but were unable to speak with KWT. Subsequently the officer advised:

"Views of [KWT]:
I attempted to speak with [KWT] today, who was supported by nursing staff. [KWT] said hello but did not respond to any questions about her day or the application. The registered nurse then advised that [KWT] was confused and had gotten up and wandered away. The RN confirmed that she will be with [KWT] to support her to participate in the hearing via video."

FZS said that on the day of the hearing she took KWT into the room where she and BCJ would be participating in the hearing by video. After a few minutes, KWT asked to return to her room. At that point, it appeared that KWT had tested positive to COVID-19.
In FZS's opinion, because of her declining cognition KWT would be unable to understand the purpose of, or to participate in, the proceedings. BCJ and Mr Z agreed with that opinion.
FZS's opinion is consistent with the available medical evidence. We decided to proceed to determine the application to review the EGA in the absence of KWT.

Issues to be determined

We must decide three issues:

whether the EGA has come into effect;

if so, whether there is a need for decisions to be made about the use of restrictive practices in relation to KWT; and

if so, whether the power to vary the EGA to add a restrictive practices function should be exercised.

Regulatory framework: restrictive practices

The Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) (the Principles) govern the use of restrictive practices in residential aged care. A restrictive practice is defined as any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient: Aged Care Act, s 54-9(1). Section 15E of the Principles provides for five categories of restrictive practices. These include "environmental restraint", which is defined to mean "a practice or intervention that restricts, or involves restricting, a care recipient's free access to all parts of their environment (including items and activities) for the primary purpose of influencing their behaviour".
KWT is a "care recipient" for the purpose of the Aged Care Act.
An aged care provider must ensure that a restrictive practice is only used in accordance with the circumstances set out in the Principles: Aged Care Act, s 54-1(f). Section 15FA of the Principles lists the requirements for the use of a restrictive practice. These include that a restrictive practice can only be used:

Except in an emergency, as a last resort to prevent harm to the care recipient or other persons, and after consideration of the likely impact on the use of the restrictive practice on the care recipient: the Principles, s 15FA(1)(a).

To the extent possible, where best alternative strategies have already been used, and where the alternative strategies that have been used or considered have been documented in the behaviour support plan for the care recipient: the Principles, ss 15FA(1)(b) and (c).

To the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons: the Principles, s 15FA(1)(d).

In the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons: the Principles, s 15FA(1)(e).

If informed consent is given by the care recipient, or the restrictive practices substitute decision-maker: the Principles, s 15FA(1)(f).

In compliance with any provisions of a behaviour support plan for the care recipient that relate to the use of the restrictive practice: the Principles, s 15FA(1)(g).

A restrictive practice can only be used if informed consent to the proposed restrictive practice has been given by the care recipient, or, if the care recipient lacks the capacity to give informed consent, the "restrictive practices substitute decision-maker": the Principles, s 15FA(1)(f). In NSW, "an individual or body is the restrictive practices substitute decision-maker for a restrictive practice in relation to a care recipient if the individual or body has been appointed under [the Guardianship Act] as an individual or body that can give informed consent to the use of the restrictive practice in relation to the care recipient if the recipient lacks capacity to give that consent": the Principles, s 5B(1).
The EGA does not authorise BCJ to make decisions about restrictive practices in relation to KWT. It follows that BCJ is not a restrictive practices substitute decision-maker for the purposes of the Aged Care Act.

Has the EGA come into effect?

An appointment of an enduring guardian under Pt 2 of the Guardianship Act 1987 (NSW) has effect only during such periods of time as the appointor is "a person in need of a guardian": Guardianship Act, s 6A(1)(a). A person in need of a guardian is defined as a person who, because of a disability, is totally or partially incapable of managing his or her person: Guardianship Act, s 3. A person with a disability is defined to include a person who is physically and/or psychologically 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 (support to live in the community): Guardianship Act, s 3(2).
In a report dated 14 November 2023, geriatrician, Dr Y, stated that KWT had severe Alzheimer's Dementia together with several other health conditions. In a pro forma health professional report form dated 14 May 2024, FZS said that KWT had moderate dementia.
In an Aged Care Assessment Team assessment report dated 29 July 2021, the author said that KWT was heavily reliant on her husband for most "tasks of daily living" and requires support with self-care. BCJ administers and monitors all of KWT's medication.

Consideration

KWT has a disability, Alzheimer's Dementia, which renders her partially incapable of managing her personal affairs. As a result of that condition, she is restricted in several major life activities, including self-care, to such an extent that she requires support to live in the community, and in residential aged care. It follows that KWT is "a person in need of a guardian" and the EGA has come into effect.

Need for a restrictive practices function

In a Behavioural Support Plan dated 7 February 2024, Mr X set out the findings he made on assessment of KWT on the day of that report.
The report appears to contain an error. In answer to the question, "Restrictive practices are assessed as necessary?", Mr X wrote "no". However, in answer to the question, "Restrictive practices for ongoing use is indicated", Mr X wrote "Yes".
Mr X identified the proposed restrictive practice that would be used if, as proposed KWT moved to the "secure unit" within the aged care facility as "environmental restraint", specifically "locked exit doors in the facility". Mr X wrote that environmental restraint was necessary because of "agitation, danger to others, danger to self, prevention of wandering and protection from hazards". In his opinion, KWT was at "high risk of wandering and falling outside the building and harming herself". In the Behavioural Support Plan, Mr X listed several strategies to minimise KWT's "wandering behaviours".
BCJ and his son agreed that KWT tended to wander. They supported the decision to move KWT to move to a secure unit with locked exit doors. In their view, that was necessary to keep KWT safe. FZS agrees.
KWT has been subject to environmental restraint since moving the aged care facility's dementia unit earlier this year. It is proposed that this continues. In circumstances where KWT is unable to give, or to withhold, informed consent to the use of restrictive practices, where a restrictive practices substitute decision-maker person has not been appointed, where KWT is subject to restrictive practices and it is likely that this will continue, there is a need for a person to be appointed who is authorised to give, or to withhold, consent to the use of restrictive practices.

Whether the power to vary the EGA to add a restrictive practices function should be exercised

The powers available to us on review of the EGA include:

to confirm the EGA and vary or not vary the functions given to the enduring guardian under that appointment: Guardianship Act, s 6K(1)(b)

if we consider that it is in the best interests of KWT to do so, to deal with the review as if it was an application for a guardianship order: Guardianship Act, s 6K(3)(a).

If the second of these powers is exercised and the discretion to make a guardianship order is exercised, that will have the effect of suspending the EGA: Guardianship Act, s 6I(1).
Apart from s 4 of the Guardianship Act, that Act does not provide express guidance about the exercise of the discretion to confirm the appointment of an enduring guardian and to vary or not vary the functions given to the enduring guardian.
To appoint a person as guardian for a person for whom a guardianship order has been made, the Tribunal must be satisfied that the proposed guardian satisfies the criteria in s 17(1) of the Guardianship Act:

17 Guardians
(1)   A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that-
(a)   the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b)   there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and
(c)   the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

In our view, where, as here, the Tribunal is considering whether to exercise the discretion to confirm the appointment of an enduring guardian and to vary or not vary the functions given to the enduring guardian under that appointment, the criteria in s 17(1) of the Guardianship Act provides useful guidance about the factors which inform the exercise of that discretion. Of particular relevance in the circumstances of this case is the requirement that the Tribunal be satisfied that "the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order": Guardianship Act, s 17(1)(c). This requires consideration of whether the enduring guardian has and is likely to continue to be able and willing to discharge the functions conferred under the appointment in a manner consistent with the s 4 principles of the Guardianship Act (the section 4 principles). Among other things, those principles require that paramount consideration be given to the welfare and interest of the appointor: Guardianship Act, s 4(a).

BCJ

Over the past few years as her health has deteriorated, KWT has become increasingly dependent on others, primarily her husband, for care and support. Throughout that period, BCJ has been an attentive, loving and diligent carer.
BCJ's account of how he arrived at the difficult decision to move KWT to the aged care facility, and later to the dementia unit, demonstrates that in making decisions on behalf of his wife in his role as enduring guardian he has been conscientious and prepared to consider and to critically evaluate the recommendations made by her treating doctors and those providing her with care and support. BCJ claims that he always tries to make the "best decision" for his wife. His son and FZS support that claim.
We find BCJ to be a suitable person to continue to act as enduring guardian for KWT and to discharge the functions given to him under the EGA: to decide where KWT lives, the health care and other kinds of personal services she receives, and to consent to the carrying out of medical and dental treatment.

Mr Z

Mr Z's appointment as substitute enduring guardian will only come into effect if his father dies, resigns or during any period his father is incapacitated: Guardianship Act, s 6D(3).
Mr Z has not acted as enduring guardian and may never do so. Therefore, it is not possible to say based on his performance of that role whether he is a suitable person to discharge the functions of the EGA. He claims that he is, and his father agrees. The explanation he gave in these proceedings of his understanding of the duties and obligations of an enduring guardian evidence that Mr Z appreciates that if he were to make decisions on behalf of his mother, he would be obliged to give paramount consideration to her welfare and interests.
We find that Mr Z is a suitable person to act as enduring guardian for KWT.

Are BCJ and Mr Z suitable people to exercise a restrictive practices function for KWT?

This question requires consideration of:

the wishes of KWT, and

whether BCJ and/or Mr Z are willing and able to give consent, or to withhold consent, to the use of restrictive practices for KWT in a manner consistent with the section 4 principles.

The wishes of KWT

KWT is now unable to express a view about whether the EGA should be varied to include a restrictive practices function. There is no evidence that KWT has ever previously expressed a view about this issue.
In 2023, when KWT made the EGA, she gave her husband, and in the alternative her son, the "standard" functions listed in s 6E(1)(a)-(d) of the Guardianship Act: accommodation, health care, personal services and consent to the carrying out of medical and dental treatment. She did not give her husband a restrictive practices function or "any other function" as permitted by s 6E(1)(e) of the Guardianship Act. According to BCJ, to his knowledge the solicitor who prepared the EGA did not raise the issue of restrictive practices with KWT. In our view, the most likely explanation for the omission of a restrictive practices function from the EGA is that neither KWT nor the solicitor who prepared the EGA were aware of restrictive practices or anticipated that there might be a need for decisions about restrictive practices to be made on behalf of KWT.
It cannot be inferred from KWT's failure to give her husband and son a restrictive practices function that she considered them to be unsuitable to exercise that function or that she did not want to appoint a person to exercise that function on her behalf.

Willing and able to exercise the restrictive practices function, in a manner which is consistent with the section 4 principles of the Guardianship Act

The question posed is whether BCJ and/or Mr Z are able to exercise a restrictive practices function in a manner consistent with the section 4 principles.
Decisions concerning the use of restrictive practices can be complex and require consideration of, among other things:

the nature of the care recipient's behaviours of concern for which the proposed restrictive practice is recommended

the likely effect of the use of the restrictive practice on the care recipient

the relative advantages and disadvantages of the use of the proposed restrictive practice to the care recipient

whether any less restrictive type of restrictive practice could be used

whether a less restrictive form of restrictive practice has been trialled, and if so, whether the length of that trial was adequate

if able to be discerned, the views of the care recipient about the proposed use of the restrictive practices.

The obligation to give paramount consideration to the welfare and interests of the care recipient in giving or withholding consent to the use of the restrictive practice will generally require that the person authorised to consent to their use:

has a general understanding of the rules governing the use of restrictive practices

is able to critically evaluate the available information about the proposed restrictive practice

is willing and able to liaise with the person recommending the use of the restrictive practice

is willing and able to seek further information from the person recommending the use of the restrictive practice, and, if necessary, to test their opinion about the need for and the efficacy and safety of the proposed restrictive practice

is willing and able to consult with the care recipient about the use of the proposed restrictive practice and to take their views into account.

We questioned BCJ at length about how he would make decisions on behalf of his wife about the use of restrictive practices. His answers revealed a tendency to be deferential to health practitioners. Nonetheless, BCJ struck us as an intelligent man who would be prepared to review and critically evaluate recommendations made by health practitioners about the use of restrictive practices. While BCJ did not demonstrate a detailed understanding of the rules which govern the use of restrictive practices in aged care, he nonetheless demonstrated a sound understanding of the principles which govern their use: that such practices only be used as a last resort to prevent harm and, where used, the form of practice should be the least restrictive. BCJ's account of the reasoning process he employed when asked to consent to KWT being moved to the dementia unit demonstrated an understanding of, and importantly willingness to apply those general principles in decisions made on behalf of his wife.
We find BCJ is able and willing to exercise a restrictive practices function.

Mr Z

Like his father, Mr Z demonstrated a general understanding of the governing principles which govern the use of restrictive practices in aged care. In addition, he demonstrated an ability and willingness to apply those principles in making decisions about the use of restrictive practices for his mother. We find Mr Z is able and willing to exercise a restrictive practices function.

Would it better give effect to the section 4 principles to make a guardianship order and to appoint BCJ as guardian and Mr Z as alternative guardian for KWT?

An alternative to confirming the EGA and adding a restrictive practices function would be to treat the review of the EGA requested by FZS as an application for a guardianship order, to make such order, and to appoint BCJ as guardian and Mr Z as alternative guardian with the functions conferred under the EGA together with a restrictive practices function.
The only practical difference between a guardianship order with a restrictive practices function and an enduring guardianship appointment with a restrictive practices function is that the former must be reviewed by the Tribunal, generally within 12 months of an initial guardianship order, and thereafter within three years. On the other hand, an enduring guardianship appointment is only subject to review by the Tribunal on the request of a person with a genuine concern for the appointor.
We decided not to make a guardianship order but rather to confirm the EGA and to add a restrictive practices function. That decision preserves the EGA and arguably better reflects KWT's wishes that her personal affairs be managed by her husband or son. In reaching that decision we placed significant weight on the willingness and ability of BCJ and Mr Z to exercise the functions conferred under the EGA, together with the proposed restrictive practices function, in a manner which conforms with the section 4 principles. In those circumstances no useful purpose would be served by making and reviewing a guardianship order.

Scope of restrictive function

The only restrictive practice to which KWT is currently subjected is environmental restraint, the use of locked doors to prevent her from leaving the dementia unit.
Nonetheless, we decided not to restrict the scope of the restrictive practices function to the type of restrictive practice currently being used in respect of KWT. On the available material it is not possible to rule out that in the future other types of restrictive practices may be recommended in addition to or in substitution for environmental restraint. Our decision should not be taken to suggest that we hold the view that additional or alternative restrictive practices are necessary or appropriate, or that the practice currently being used is unnecessary or inappropriate. Rather, our decision simply reflects that the role of the Tribunal is not to consent to, or to withhold consent to the use of restrictive practices on behalf of KWT, nor to make decisions about the type of restrictive practices that should or should not be used in respect of KWT. Those types of decisions are to be made by a guardian or enduring guardian with a restrictive practices function, in accordance with the section 4 principles, and the Aged Care Restrictive Practices Condition as set out in our orders.
Our decision has the practical advantage that BCJ will not be required to apply to NCAT for a further review of the EGA if, in the future, a decision is required to be made about the use of additional or alternative practices for KWT.

**********

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: 02 October 2024

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KWT [2024] NSWCATGD 11

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Medium Neutral Citation:	KWT [2024] NSWCATGD 11
Hearing dates:	21 May 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Jurisdiction:	Guardianship Division
Before:	A Britton, Deputy President Dr M J Corr, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	In relation to the enduring guardian appointment made by KWT on 21 May 2024 appointing BCJ the Tribunal orders: The functions of the enduring guardian are varied to include restrictive practices, subject to the condition below: Aged Care Restrictive Practices Condition The enduring guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence KWT’s behaviour: (i) as a last resort to prevent KWT harming themself or others; and (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KWT or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on KWT; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to KWT’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in KWT’s circumstances.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – request to add restrictive practices function – principal with severe Alzheimer’s dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the enduring guardian and substitute enduring guardian are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made
Legislation Cited:	Aged Care Act 1997 (Cth), ss s 54-1(f), 54-9(1) Guardianship Act 1987 (NSW), ss 3, 3(1)-(2), 4, 4(a), 6A(1)(a), 6D(3), 6E(1)(a)-(e), 6I(1), 6K(1)(b), 6K(3)(a), 17(1), 17(1)(c); Pt 2 Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g)
Cases Cited:	None cited.
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Guardianship Appointment KWT (the person) FZS (applicant) BCJ (enduring guardian and spouse) NSW Trustee and Guardian NSW Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2024/00051358
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.