KYT

[2018] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KYT [2018] NSWCATGD 36

Hearing dates:

18 December 2018

Date of orders:

18 December 2018

Decision date:

18 December 2018

Jurisdiction:

Guardianship Division

Before:

A D Suthers, Senior Member (Legal)
Dr L Tong, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

The guardianship order for KYT made on 20 September 2018 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 one year from 20 September 2018.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Health care

 

To decide what health care KYT may receive.

 

b) Medical/Dental consent

 

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

 

c) Services

 

To make decisions about services to be provided to KYT.

 

CONDITION:

 

5. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – requested review of guardianship order – functions of guardian – restrictive practices – definition and nature of restrictive practices – relationship between restrictive practices and NDIS – chemical restraint – whether practice is a restrictive practice

  WORDS AND PHRASES – Restrictive Practice

Legislation Cited:

Guardianship Act 1987 (NSW), s 14(2)
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:

005: Requested Review of Guardianship Order

  KYT (the person)
HBU (applicant)
Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

NCAT 2001/00105156

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. KYT is a 38-year-old man, who lives in fully-supported accommodation in Sydney. At previous hearings of the Tribunal, it has been determined that KYT has diagnoses of intellectual disability and autism, and exhibits challenging behaviours. The Tribunal has made guardianship orders in relation to KYT for several years.

2. On the last occasion, on 20 September 2018, the Tribunal made a guardianship order appointing the Public Guardian to make decisions about KYT’s health care, to consider consent to medical and dental treatment, and to make decisions about the services he receives. That order was made for a period of 12 months.

3. Ms Z has submitted an application to review that guardianship order. HBU subsequently became the applicant.

4. The applicant is concerned that a restrictive practice function may be required of a guardian, to consider consent to restrictive practices for KYT.

5. In particular, it is said that KYT requires treatment with PRN or “as needed” medication in order to have his Supra Pubic Catheter changed at regular intervals and that without that medication, he becomes distressed and displays challenging behaviours.

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

7. The Tribunal will only renew the guardianship order if satisfied that:

• KYT continues to have a disability which restricts him in one or more major life activities to the relevant extent and is totally or partially incapable of managing his person (The precise legislative test was referred to in the Tribunal’s reasons when making the order and, for simplicity, does not need to be repeated here.); and

• The Tribunal should continue the guardianship order. The general principles recognise the importance of freedom of action, self-determination and independence, against which the Tribunal must balance protection from neglect, abuse and exploitation.

• The Tribunal considers all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW), before exercising its discretion.

8. The Tribunal may consider varying the order if, for example, new functions are required or the functions previously given to a guardian are no longer required.

9. We received a number of reports which indicate that KYT does not communicate verbally. It was also the view expressed by the witnesses at the hearing, and consistent with the evidence previously obtained by the Tribunal, that KYT would not be in a position to meaningfully participate in the process, due to his disability. On that basis, we proceeded in his absence.

10. We had a number of reports and other documents available to us, which consistently indicate that KYT has diagnoses of intellectual disability and autism. Those reports also indicate, consistent with the view expressed by the witnesses at the hearing, that as a result of those disabilities KYT is unable to make important personal, health and lifestyle decisions, such that he needs supervision or assistance to function in society and has an inability to manage his person.

11. KYT remains a person for whom we could make a guardianship order.

Is there a need for a Restrictive Practices function?

12. The Guardianship Act does not define restrictive practices.

13. 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.

14. We consider all relevant circumstances when deciding whether to give a guardian authority to decide about restrictive practices. One relevant circumstance is the recent implementation of the NDIS Quality and Safeguarding Framework, which underpins that Scheme.

15. Under the Framework, States and Territories are responsible for the authorisation of restrictive practices used by registered NDIS providers and behaviour support practitioners.

16. 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’.

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

18. 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:

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;

19. The Tribunal was provided with a Positive Behaviour Support Plan prepared for KYT, which indicates that there have, in the past, been a number of restrictive practices being used in relation to his care. We were advised by HBU at the hearing, though, that since moving accommodation most of those restrictions are no longer used with KYT.

20. The only issue of remaining concern to the applicant was the use of medication, being Temazepam, which is used to treat the anxiety KYT feels when having his Supra Pubic Catheter changed or when he has medical or dental appointments which require him to be physically examined or touched by the treating medical practitioner.

21. HBU advised us that the organisation which supports KYT had obtained advice from his treating medical practitioner, who prescribes the Temazepam, that use of that medication was not for the primary purpose of influencing KYT’s behaviour. The doctor’s report indicates that it is used in the treatment of a diagnosed medical condition. The report, by Dr Y, reads as follows:

[KYT] has a Generalised Anxiety Diagnosis and at times requires PRN prior to the catheter change to reduce the symptoms of this psychiatric diagnosis. [KYT] does not get PRN prior to all catheter changes and there is a behaviour management plan in place so staff can predict if the triggers or antecedents are identified that may or may not need a chemical intervention.

This is not a restrictive practice but a management option for symptoms of [KYT]’s psychiatric condition.

22. The opinions expressed in that report by Dr Y were supported by HBU and Ms Emma Cherrington, from the Office of the Public Guardian, at the hearing.

23. Each of the parties submitted that, notwithstanding that an application had been made so that the Tribunal could consider the issue, the use of Temazepam was for treatment of the Generalised Anxiety Disorder with which KYT is diagnosed, rather than for the primary of purpose of influencing KYT’s behaviour. There was no evidence to the contrary.

24. Based on that uncontroverted evidence, we were satisfied that the medication was primarily being used to treat that condition.

25. In those circumstances, the use of that medication is not a restrictive practice for which the consent of a guardian with that function is required. It may be consented to by a guardian with the function of considering giving medical and dental consents. The Public Guardian already holds that function

26. There has been no other change in KYT’s circumstances which has altered the need for the order to continue with the functions previously given to the Public Guardian, who remains the only available appointee.

27. On that basis, we continued the order made on 20 September 2018, for the balance of the original term, with the functions currently given to the guardian.

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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