MDN (Guardianship)

CITATION:	MDN (Guardianship) [2021] TASGAB 21
HEARING DATE(S):	16 November 2020, 3 February 2021, 24 March 2021 and 30 March 2021
DATE OF ORDER:	30 March 2021
DATE OF STATEMENT OF REASONS:	23 April 2021
BOARD:	Ms Rowena Holder, President
APPLICATION	Application for Guardianship
CATCHWORDS:	Guardianship; role of the NDIS nominee; conflict between service provider and PRP’s family; purpose of psychotropic medication; behaviour management; chemical restraint; need for guardian with chemical restraint power
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 4, 6, 20, 39 Disability Services Act 2011 (Tas) National Disability Insurance Scheme Act 2013 (Cth), s9 National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules 2018, r 6, 9
CASES CITED:	HZC [2019] NSWCATGD 8
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Application

The Applicant, LN made Application for Guardianship in relation to her sister, MDN, dated 13 October 2021 (‘the Application’). The Application proposes that the Applicant be appointed as MDN’s Guardian.

Hearing

The Application was heard by the Board over a number of days, 16 November 2020, 3 February 2021, 24 March 2021 and 30 March 2021. The following people appeared at some or all of the abovementioned hearing dates:
a.LN (the Applicant);
b.QNN (MDN’s Mother);
c.Mr QDN (MDN’s Brother);
d.Clinical Assoc Professor Robyn Wallace (General Physician) (Dr Wallace);
e.Ms Amy Siggins of Mosaic Support Services (MSS);
f. Ms Danielle Brown of Mosaic Support Services (MSS);
g.Dr Megan Baker (General Practitioner).
The Board had before it the following documents:
a.The Application;
b.Administration Order dated 24 June, 2020;
c.Health Care Professional Report by Dr Robyn Wallace dated 17 October 2020 (HCPR);
d.Emailed medical letter by Dr Robyn Wallace dated 26 March 2021;
e.Medical letter by Dr Robyn Wallace dated 19 August, 2020;
f.Medical letter by Dr Robyn Wallace dated 27 May, 2020;
g.Medical letter by Dr Robyn Wallace dated 19 March 2019;
h.Medical letter by Dr Robyn Wallace dated 28 October 2015;
i.Medical letter by Dr Robyn Wallace dated 26 August 2015;
j.Police check from Australian National Character Check dated 3 November 2020 relating to the Applicant;
k.Report from the Public Trustee dated 20 May 2020;
l.Speech Pathology Report from Tanya Laugher dated 30 September 2018;
m.Email submission from Mr Charley Hodgson, Senior Practitioner dated 30 November 2020;
n.Protocols from Mosaic Support Services, of multiple dates;
o.Behaviour Assessment from Liss Gustafsson dated 27 July, 2014;
p.Behavioural Support Plan from Anglicare undated;
q.Initial Behaviour Assessment Report from Ms Di Pullen, Clinical Psychologist, dated 2 July 2019;
r.Purpose of Medication Form dated 14 August 2019;
s.Behavioural Support Plan from Ms Rachel Barac dated 3 November 2020.

Legislation

Under section 20 of the Guardianship and Administration Act 1995 (‘the Act’), the Board may make an order appointing a full or limited guardian in respect of MDN if it is satisfied that:
a.she is a person with a disability; and
b.she is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to her personal circumstances; and
c.she is need of a guardian.
In determining whether or not an order should be made, section 20 of the Act requires that:
a.the Board consider whether MDN needs could be met by other means less restrictive of her freedom of decision and action; and
b.the Board be satisfied that an order would be in MDN’s best interests; and
c.the Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet MDN’s needs, and if a limited order is made, the order must be the least restrictive to MDN’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principals in section 6 of the Act, which are :
a.the means which is the least restrictive of MDN’s freedom of decision and action as is possible in the circumstances is adopted; and
b.the best interests of MDN be promoted; and
c.the wishes of MDN are, if possible, carried into effect.

Background

MDN is a 52 year old single woman who has strong family supports. MDN has lived in independent support accommodation, with support from Mosaic Support Services funded through MDN’s NDIS plan, for the last approximate 20 years. She previously resided at [the Facility] and with her parents.
An Administration Order was made in respect of MDN on 24 June 2021, appointing the Public Trustee as her administrator and is in effect until 23 June 2024.

Medical expert evidence

Dr Wallace gave evidence at hearing, and in a HCPR dated 17 October 2020, that MDN was born with a severe congenital intellectual disability, and also has a possible diagnosis of Autism. Dr Wallace stated MDN is nonverbal and has a background of severe trauma and behavioural issues attributed to being institutionalised for many years at [the Facility]. Dr Wallace stated that there was no diagnosis of mental illness but some history of anxiety.
Dr Wallace identified that as a result of her disability MDN has deficits in the areas of receptive and expressive communication; planning and reasoning skills; orientation to person, place and time; impulse control; and susceptibility to influence and suggestibility. Dr Wallace opined that MDN has significant incapacities arising over a multitude of issues and has an inability to make reasonable judgments in respect to any matters of consequence, such as medical treatment, accommodation, and NDIS related matters including support service delivery. The HCPR by Dr Wallace states that MDN’s disability ‘affects her reasoning, understanding, expression so that she requires full disability support for all personal matters’ and ‘she does not have literacy or numeracy skills due to intellectual disability.’
Dr Baker stated at hearing MDN had a diagnosis of Autism Spectrum Disorder and a background of complex childhood trauma. A Report from Ms Di Pullen, Clinical Psychologist dated 2 July 2019 refers to a diagnosis of severe Autism Spectrum Disorder and intellectual disability which is reiterated in the current Behavioural Support Plan from Ms Barac, Behavioural Support Practitioner.

Evidence of Need for a Guardian

The Applicant opined that MDN needed a guardian and someone to advocate for her at all times. The Applicant expressed concerns about the service provision MDN was receiving and believed information was being withheld from family members. The Applicant reported there was breakdown in communication between MDN’s family and MSS. There was evidence that some issues had been partially resolved with advocacy support from Speak Out. The Applicant stated at the hearing on the 16 November 2020 she was considering a change in MDN’s service providers.
Dr Wallace gave evidence that there have been multiple changes in MDN’s living environment. There has been an appearance of conflict or communication breakdown between the service provider and family that most likely arose through high staff turnover working with MDN. This communication breakdown between staff and family had been assisted by advocacy support; however, Dr Wallace did not believe it had adequately resolved issues. Dr Wallace stated even though the Applicant is MDN’s NDIS Nominee, many decisions are being made by MDN’s service providers without the approval of the Applicant. Dr Wallace opined there may be a need for the appointment of a guardian, being a family member with powers relating to NDIS matters and service delivery; accommodation; and possibly decisions pertaining to medical treatment but indicated that this may well be able to be managed by a family member acting as Person Responsible.
There was evidence that MDN has a number of behaviours of concern, which are set out in the current Behavioural Support Plan dated 3 November 2020. There was evidence that a number of environmental restrictive interventions have been approved by the Secretary of the Department of Communities under the Disability Services Act 2011 and implemented by MSS. These related to the locking of a number of cupboards, a wardrobe and internal gates within MDN’s residence and are detailed further in the Behaviour Support Plan.
At the hearing on 24 March 2021, the Board questioned the Applicant as to whether she believed any accommodation decisions or changes to MDN’s current accommodation needed to be made. The Applicant indicated MDN’s accommodation needs were currently being met and she did not believe any decisions as to where MDN was to live needed to be made.
QNN gave evidence that she was MDN’s Person Responsible and made medical treatment decisions on her daughter’s behalf.
QNN expressed a fear of family not being involved in decision making around service delivery based on what has occurred in the past. QNN and the Applicant, however, reported that since a new team leader of MSS had been appointed there has been positive change and the outstanding issues that weren’t resolved with advocacy support were now resolved. QNN stated the family were willing to work collaboratively with MSS.
The Applicant confirmed that she was MDN’s NDIS Plan Nominee. The Applicant stated she has been involved in the NDIS Plan reviews and believed MDN’s NDIS Plan met her current needs. MDN’s next Plan review is scheduled for October 2021.
Ms Siggins from MSS confirmed there had been previous communication issues that were rectified by a new team leader being appointed and a core team working with MDN. Ms Siggins indicated there was no intention in the foreseeable future to change these arrangements. Ms Siggins also commented that there was a better understanding of the role of NDIS Nominee across management and support staff.
The Board heard evidence that MDN was being prescribed Largactil, a psychotropic medication. Dr Wallace stated she had copies of letters from Dr Peter Wurth, psychiatrist, which indicated MDN was being prescribed a high dose of Largactil when she first met with MDN in 2015. The Board enquired whether the Largactil was being prescribed for a medical treatment purpose or for the purpose of controlling MDN’s behaviour. At hearing Dr Wallace stated that she believed the medication was prescribed for an organic reason. Dr Wallace later submitted to the Board evidence by email dated 29 March 2021 which stated:
In 2019 a further review with Dr Wurth was instigated to evaluate again the presence or not of mental illness, and treatment. He suggested that MDN benefited from the Largactil and would need it lifelong.
MDN has been on Largactil 400mg for some years now. Further consideration of reduction is not excluded and would, as before, occur in conjunction with her family.
In relation to the question: “Is largactil a chemical restraint now for MDN?”, my answer is consistent with that of Dr Wurth’s review in that now Largactil at 400mg per day is useful for MDN and she now effectively needs it for daily functioning. She may well have experienced neurobiochemical brain resetting as a result of this medication so that there is now an organic reason for it to continue. In the past it may well have been used as a chemical restraint. An underlying psychiatric psychotic illness may well have been present too, but that does not seem provable or disprovable at this point. That MDN has experienced severe physical, psychological trauma is undisputed and she has been diagnosed as having autism and moderately severe intellectual disability appear supported.
I believe a behavioural management plan for MDN is indicated in any case, whether or not she has a psychiatric illness, or and an acquired/congenital organic brain condition requiring largactil.
The management of MDN is complex and accept there is a degree of permanent uncertainty for the indications of use of largactil. A common aim is to make an environment and ensure the best physical health for the best possible opportunities for MDN to enjoy her life, and her family. Functionally largactil has been recommended for continued use. Its use cannot be confirmed as a chemical restraint. The sound psychiatry opinion suggested that it should not ever be ceased.
The Applicant and QNN were of the view that Largactil was being prescribed by Dr Wurth for behavioural control. The Applicant advised that Dr Wurth is now not engaged in MDN’s treatment and her GP Dr Megan Baker was the prescribing doctor. The Board adjourned the hearing on the 24 March 2021 to enable it to hear evidence from Dr Baker. Dr Baker gave evidence on the 30 March 2021.
Dr Baker stated that she had been MDN’s GP since the end of 2015. MDN was on Largatil overseen by Dr Wurth when she first commenced seeing her. She indicated MDN had been on psychotropic medication since childhood, the reasoning being unknown but certainly involved an element of behaviour control. She indicated when people are on that medication for some time it is difficult to get them off it. Dr Baker stated a person with autism is usually quite reactive to their environment and changes within that environment can affect their behaviour. She stated MDN had difficulty with self-regulation. Dr Wurth conducted a review in 2019 that resulted in a change in dosage of Largactil because of an increase in behaviours. There was a subsequent review by Dr Wallace who decreased the dosage because of further changes in behaviour. Dr Baker stated it was not black and white to determine whether Largactil was for behavioural management or for the treatment of an underlying mental health or medical condition, and indicated she would refer to specialists. At hearing Dr Baker opined it was more likely than not she was prescribing Largactil for behaviour management. She noted that family had been consenting to its use.
Dr Baker confirmed she had authored a Purpose of Medication Form relating to MDN dated 18 September 2019 which was submitted to the NDIS Quality and Safeguards Commission (NDIS Commission) which stated Largactil was for behaviour management. MSS stated they were reporting to the NDIS Commission monthly on the use of Largactil as a chemical restraint. MSS indicated they were only required to submit a new Purpose of Medication Form if circumstances changed or dosage changes.

Determination

The Board is persuaded by all the medical evidence before it that MDN has a disability that is lifelong Intellectual Disability and Autism Spectrum Disorder with a background of complex trauma.
On the basis of the medical evidence of Dr Wallace and the confirmatory evidence given by her family and carers, the Board finds a global impairment of MDN’s capacity to make decisions in respect to personal and lifestyle matters as a result of her disability.
When considering where there is a need for the appointment of a guardian, the Board finds that MDN is settled in her accommodation and there are no proposals for any change in her accommodation. She receives services and supports that are funded through the NDIS. There is no evidence of a current need for a guardian to make decisions in respect to where MDN is to live.
Dr Wallace raised there may be possible decisions that need to be made pertaining to medical treatment. There was no evidence before the Board of any need arising in connection with medical treatment decisions, except the issue of Largactil, which is dealt with below. The Board heard evidence that MDN has her mother as her Person Responsible[1] and if she was unable to perform the role, the Applicant or her brother are willing to be Person Responsible for her. If a guardian is appointed then the guardian will be her person responsible.[2]
[1] section 4 and section 39 of the Act
[2] section 4 of the Act
The Applicant is MDN’s NDIS Plan Nominee. A nominee may be appointed to make decisions under the NDIS on the person’s behalf where a participant does not have the capacity to undertake any of the tasks required by the Scheme and the participant cannot be supported to undertake those tasks. A plan nominee can do any act relating to ‘the preparation, review or replacement of the plan and the management of funding for supports under the participants plan (unless limited in some way in their appointment by the CEO).’[3]
[3] NDIS website
The NDIS scheme is a substitute decision making scheme designed for people with disability like MDN. The Applicant as plan nominee for MDN has the power to engage providers; attend planning meetings; ensure the plan is implemented and working effectively for MDN and where required be an advocate for her. The Board was not able to identify any current decisions a guardian would need to make that a Plan Nominee is unable to make. Given the Applicant already has powers as Plan Nominee, which are clearly set out in legislation, there is no need to appoint a guardian with these same powers.
The Board also takes into account Ms Siggins’ evidence that MSS staff and management have gained a greater understanding of the NDIS plan nominee’s role and powers, and it is hoped that this hearing has also assisted further in this understanding for all participants. It appears that areas of dispute between family and MSS have resolved and it is hoped appropriate communication is maintained and the role of Plan Nominee is fully recognised.
The remaining issue raised is the use of Largactil, a psychotropic medication, and whether this is being prescribed as medical treatment to treat a diagnosed medical condition or for the purpose of controlling a person’s behaviour (behaviour management) and who, if anyone, is providing consent to its use. This requires a consideration of the meaning of medical treatment and chemical restraint.
Medical treatment is defined in the Act as:
(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a medical practitioner; or
(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist; or
….
but does not include –
(d) any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears); or
(e) first-aid medical or dental treatment; or
(f) the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer's instructions (if the drug is one for which a prescription is not required and which is normally self-administered); or
(g) any other kind of treatment that is declared by the regulations not to be medical or dental treatment for the purposes of this Act;
The Act does not define chemical restraint. The Disability Services Act 2011 (Tas), which regulates the use of restrictive interventions by disability services providers and funded private persons, defines only an environmental restraint and physical restraint. It does not consider chemical restraint.
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 the person with disability’.[4] The NDIS Quality and Safeguards Commission (the NDIS Commission) was formed with one of its primary functions being to oversee restrictive practices in Australia with the focus to reduce and eliminate their use. The NDIS Commission ensures that consent and authorisation is obtained for the use of all regulated restrictive practices.
[4] Section 9 National Disability Insurance Scheme Act

Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (‘the Rules') certain restrictive practices are subject to regulation. Rule 6 state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following:
(a) seclusion….
(b) 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;
(c) mechanical ….
(d) physical restraint, ….
(e) environmental restraint….

36.Part 2 of the Rules sets out the conditions of registration that apply to all registered NDIS providers who use restrictive practices in the course of delivering NDIS supports. These conditions include requiring the use of restrictive practices to:
not occur where the relevant State and Territory prohibits such use;
be undertaken in accordance with State and Territory authorisation processes and a behaviour support plan; and
be recorded by the provider and reported to the Commissioner.

37.Rule 9 relates to the use of a regulated restrictive practice in a State or Territory ‘with an authorisation process (however described)’ by a registered NDIS provider in that State. The Notes to r 9 of the Rules state:
An authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer.

While it is not bound to do so, the Board adopts the definition of chemical restraint used in the NDIS Rules, given there is no relevant State legislation providing such definition. The Board has considered and relies on the reasoning set out in HZC [2019] NSWCATGD 8 para 46-71.[5]
[5] There is no legislation in NSW equivalent to the Disability Services Act 2011 Tas relating to restrictive practices
MDN’s behaviour support plan details the use of some of the psychotropic medication as being a restrictive practice: chemical restraint. MSS submitted a Purpose of Medication Form authored by Dr Baker to the NDIS Commision referring to the Largactil as a chemical restraint for behaviour management, and MSS are reporting monthly to the Commission on its use. While somewhat hesitant in committing to whether the use of Largactil was for the purpose of treatment or behaviour management, Dr Baker gave evidence that she believed she was prescribing it for behavioural management, a view shared by family members. Dr Baker was not able to identify any other medical condition she was treating with the use of the Largactil.
The Board had no reports before it from psychiatrist Dr Wurth, who up until 2019 had some involvement in MDN’s clinical care. No other psychiatrist in recent times has been involved in MDN’s clinical care.
Dr Wallace gave evidence that Dr Wurth ‘evaluated again the presence or not of mental illness and treatment’ in 2019 and there was no diagnosis of mental illness in the documentation she had from Dr Wurth. Dr Wallace’s comment that ‘[a]n underlying psychiatric psychotic illness may well have been present too, but that does not seem provable or disprovable at this point’ provides no evidence of mental illness. Dr Wallace stated that Dr Wurth ‘suggested that MDN benefited from the Largactil and would need it lifelong’ is not evidence either way as to whether its use is for the treatment of a medical condition or for behaviour management. Dr Wallace opines ‘she now effectively needs it for daily functioning. She may well have experienced neurobiochemical brain resetting as a result of this medication so that there is now an organic reason for it to continue.’ The Board accepts this evidence from Dr Wallace as indicating possible medical conditions (that is, mental illness and an acquired brain/congenital organic brain condition) that may require the use of psychotropic medication, but no clear medical evidence at this point is provided to support either of these conclusions.
On the evidence before it, the Board finds that the use of Largactil is prescribed and administered for the behaviour management of MDN. The psychotropic medication is being prescribed when there is no evidence of a mental illness warranting treatment by it. The evidence of the diagnosis of Autism Spectrum Disorder does not indicate Largactil is being prescribed to treat this condition. The prescribing medical practitioner Dr Baker is not able to identify any medical condition the medication is treating and believes it is for the purpose of behaviour management. The Board notes it is the intention of the Applicant and QNN to obtain further psychiatric review by a psychiatrist for MDN.
Given the use of Largactil is not medical treatment for a diagnosed medical condition, Part 6 of the Act cannot be relied on. A Person Responsible’s powers only relate to decisions concerning medical treatment[6] and therefore decisions pertaining to chemical restraint cannot be made by a Person Responsible.
[6] See section 39 of the Act
As it stands, no one is authorised outside of the NDIS Commission’s process of authorisation, to review, or consider the need or not of the chemical restraint; consider the appropriateness of dosage changes of the psychotropic medication and discuss these with a medical practitioners or behaviour support practitioners; and provide consent or not to any changes. It also raises the important issue as to who a medical practitioner must seek consent from.
The Board therefore needed to consider the appointment of a guardian with the power to authorise or not psychotropic medication as a form of chemical restraint. Substitute decision making by way of appointment of a guardian is consistent with a substitute decision approval regime existing in the Disability Services Act 2011 whereby the Board, an independent authority authorised by legislation, can approve or not personal and environmental restrictive practices. Further, the appointment of a guardian would invoke section 6 principles contained in the Act, ensuring any use of chemical restraint is the least restrictive of MDN’s freedom and action as is possible in the circumstances; and in her best interests; and her wishes (if ascertainable) are, if possible, carried into effect.
The Board finds the use of Largactil falls within the definition of chemical restraint. Irrespective of the NDIS Commission’s role of oversight relating to restrictive practices, the Board finds it is appropriate to appoint a guardian. The Board adopts the reasoning in HCZ [7] where the Tribunal stated:
[7] HZC [2019] NSWCATGD 8
68. The importance of the difference between “authorisation,” being the process by which the proposed practice is reviewed and recorded against appropriate guidelines by FaCS, [Department of Family and Community Services] and the subsequent consent by an authorised person, cannot be overstated.
69. Therefore, irrespective of whether this restrictive practice requires ‘authorisation,’ its use also requires the consent of a guardian.
The Applicant has sought appointment as MDN’s guardian and no one at hearing opposed her appointment. It is clear to the Board that the Applicant is concerned with MDN’s best interests and is willing to advocate on her behalf when required. MDN’s wishes were not ascertainable.
The Board considers that the least restrictive approach to meeting MDN’s needs is to make a limited guardianship order. Given the medical evidence presented by Dr Wallace, the Order is for three years.
The Board deems it appropriate to make conditions similar to what it would impose for an approval of a restrictive practice under the Disability Services Act 2011, and consistent with section 6 principles.

Order:

LN is appointed as the limited guardian of MDN with the power:
(i) to give or withhold consent to the use of chemical restraint.
The Order remains in effect until 29 March 2024

Conditions:

LN may only consent to the use of chemical restraint if it is the means which is the least restrictive of MDN’s freedom of action and decision as is possible in the circumstances and for the primary purpose of ensuring the safety, health or wellbeing of MDN or other persons, and should occur:

1. in accordance with a Behaviour Support Plan (BSP) which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MDN and after obtaining input from any relevant allied health professionals. The BSP should be reviewed regularly, and subject to available funding (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.

[2021] TASGAB 21

23 April 2021