MGC

[2023] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MGC [2023] NSWCATGD 12

Hearing dates:

3 May 2023

Date of orders:

3 May 2023

Decision date:

03 May 2023

Jurisdiction:

Guardianship Division

Before:

S Barnes, Senior Member (Legal)
M Ellensohn, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for MGC.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 3 May 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where MGC may reside.

b) Health care

To decide what health care MGC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to MGC.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

Today’s hearing of NZT’s financial management application is adjourned to a day to be confirmed by the registry.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 52-year-old subject person with intellectual and physical disabilities – subject person a long-term resident in an aged care facility – NDIS participant – limited contact with family members – concerns about high level of neglect – reported use of psychotropic medication by the aged care facility without informed consent – need for accommodation decisions – need for decisions to be made about NDIS funded services – need for decisions in relation to medical and dental consent – proposed private guardian not suitable to be appointed – Public Guardian appointed – order made

FINANCIAL MANAGEMENT – application for a financial management order – consideration of sections 36 and 38 of the Civil and Administrative Tribunal Act 2013 – consideration of s 4 of the Guardianship Act 1987 – hearing adjourned

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 51

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3), 17, 17(1)(a)-(c)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

MGC (the person)
NZT (applicant)
KAC (carer)
OYC (joined party)
Public Guardian

003: Financial Management Application

MGC (the person)
NZT (applicant)
KAC (carer)
OYC (joined party)
NSW Trustee and Guardian

004: Financial Management Application

MGC (the person)
OYC (applicant)
KAC (carer)
NSW Trustee and Guardian

005: Guardianship Application

MGC (the person)
OYC (applicant)
KAC (carer)
Public Guardian

Representation:

K Stanford, solicitor, appeared as separate representative for MGC

C Robinson, solicitor, appeared for OYC

File Number(s):

NCAT 2023/00070183

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

GUARDIANSHIP APPLICATIONS AND FINANCIAL MANAGEMENT APPLICATIONS

What the Tribunal decided

1. The Tribunal made a guardianship order appointing the Public Guardian as guardian for MGC for a period of six months as set out above.

2. The Tribunal dismissed the second guardianship application.

3. The financial management applications were adjourned to a day to be confirmed by the registry.

Background

4. MGC is 52 years old. It is reported that for some 35 years (since the age of 17) she has lived in the residential aged care facility now operated by an aged care service provider. She is reported to have an intellectual disability due to childhood meningitis, epilepsy, visual impairment and to be wheelchair bound.

5. MGC’s parents are Mr Z and KAC. Her sister is OYC.

6. On 2 March 2023 NZT, National Disability Insurance Scheme (NDIS) support coordinator with a disability service provider, lodged a guardianship application in relation to MGC. He sought the appointment of the Public Guardian as guardian for MGC.

7. On 9 March 2023 NZT lodged a financial management application proposing that the NSW Trustee and Guardian should be appointed financial manager for MGC. We refer to these applications as the first applications.

8. On 19 April 2023, the Tribunal ordered that MGC was to be separately represented. Kelly Stanford, solicitor, Stanfords Solicitors, was appointed separate representative.

9. On or about 28 April 2023, OYC lodged guardianship and financial management applications in relation to MGC (the second applications). She proposed that she should be appointed guardian and financial manager.

10. On 1 May 2023, the Tribunal ordered that OYC should be joined as a party to the first applications. The Tribunal also gave leave for OYC and KAC to be legally represented.

11. The four applications were listed for hearing together.

12. At the hearing Courtney Robinson, solicitor, Marsden’s Law Group, appeared for OYC. KAC was not legally represented.

The Hearing

13. At the end of these Reasons for Decision is a list of the participants in the hearing. [Appendix removed for publication.] MGC attended the hearing via video link.

14. Mr Z did not attend or participate in the hearing. KAC told us that he has dementia. He is not a party to any of the proceedings. We decided that it was appropriate to proceed with the hearing in his absence.

FINANCIAL MANAGEMENT ADJOURNMENT

15. The Tribunal may adjourn proceedings to any time and place: s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle in that Act: which is to facilitate the just, quick and cheap resolution of the issues in the proceedings: s 36(1). The Tribunal must consider the principles in s 4 of the Guardianship Act 1987 (NSW) (the Act), including that the paramount concern is the welfare and interests of the person who is the subject of the proceedings.

16. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered: s 38(5) of the CAT Act. The Tribunal is also required to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings: s 38(6) of the CAT Act.

17. The second applications were lodged after the first applications had been listed for hearing. All four applications were then listed for hearing together. Very early in the hearing it became apparent that it was likely that insufficient time would be available to hear all the applications.

18. We were of the view that it was in MGC’s interests for the guardianship applications to have priority, even if this meant that the financial management applications had to be adjourned. We had regard to the fact that material before the Tribunal prior to the hearing had raised matters of direct relevance to the guardianship applications, including serious concerns that MGC’s interests may not have been pursued as vigorously as might reasonably be expected; that there was no appointed guardian (or even a plan nominee) with authority to make decisions in relation to her NDIS- funded services (including to sign service agreements for approved services); that it was reported that OYC had recently asked the aged care facility to cancel all MGC’s NDIS-funded services until the applications before the Tribunal were finalised; and that it was understood that the facility may have acted on this request.

19. In considering the urgency of the financial management applications and the risk to MGC of an adjournment we had regard to NZT’s concerns, expressed in the financial management application, that there was a high level of neglect at the aged care facility and that MGC was not being allowed to leave the facility for community access and a change of scenery. We also had regard to OYC’s concerns expressed in her financial management application that NZT was unknown to her or to her parents and that if appointed financial manager he might financially abuse MGC and to her understanding that her parents had not consented to the provision of NDIS-funded services to MGC. However we were of the view that (once OYC understood that NZT was not proposing that he should be appointed guardian or financial manager) the issues raised in relation to the urgency of the financial management applications would be most directly and appropriately addressed in the context of consideration of the guardianship applications.

20. An adjournment of the financial management applications would give the parties to those proceedings a reasonable opportunity to be heard in relation to matters relevant to financial management.

21. We bore in mind s 4 of the Act and were of the view in all the circumstances that it was in MGC’s interests and consistent with her welfare that the guardianship applications should have priority.

22. As anticipated, after we heard evidence and submissions in relation to the guardianship applications there was insufficient time to deal with the financial management applications. Accordingly, we adjourned the hearing of the financial management applications to a day to be confirmed by the registry.

GUARDIANSHIP

What did the Tribunal have to decide?

23. In making any decision in applications of this nature, we must consider the general principles set out in s 4 of the Act. It is as follows:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles –

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

24. The questions to be considered by the Tribunal were:

• Is MGC someone for whom we could make a guardianship order?

• Should we make a guardianship order, and if so, what order should we make?

• If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Is MGC someone for whom the Tribunal could make a guardianship order?

25. Section 14(1) of the Act enables the Tribunal to make a guardianship order for MGC if we are satisfied that she is “a person in need of a guardian”.

26. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing their person”: s 3(1) of the Act. The disability must restrict the person in one or more major life activities to the extent that he or she requires supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. Commonly, we consider the person’s ability to make important personal, health and lifestyle decisions, as that is a major life activity that impacts on the person’s ability to manage in society.

27. In a health professional report form dated 2 May 2023, Dr Y, general practitioner, reported that MGC has a severe, profound and static intellectual disability due to childhood meningitis as well as epilepsy, visual impairment and immobility. Dr Y was of the opinion that MGC’s disability affected her capacity to make informed decisions about accommodation, care and services and health and medical care. He stated that she could not speak and suggested that her severe intellectual disability prevented her from comprehending ‘any information’ presented to her. He reported that her cognitive ability was ‘previously assessed but not recently’. There was no evidence as to when such assessment took place or as to its results.

28. In an NDIS summary report of 20 December 2022, Ms X, occupational therapist, reported that MGC’s diagnoses of meningitis and epilepsy impacted her physical and cognitive capacity and had resulted in postural deformities which had progressed with time. She was said to require full physical assistance with all self-care tasks.

29. While Ms X observed that MGC ‘enthusiastically engages with all visitors despite having limited verbal communication’ and that she ‘regularly made vocalisations and facial expressions or spoke single words to engage with others around her,’ this report and the other reports before the Tribunal were not inconsistent with Dr Y’s opinion that MGC has impaired capacity to make lifestyle decisions.

30. A speech pathology initial assessment report of 1 May 2023 by Ms W, speech pathologist, made similar observations in relation to MGC’s non-verbal communication, using body language, facial expressions and, inconsistently, a few single words. Ms W referred to her severe meningitis which was said to have resulted in permanent disabilities including neurological damage, learning disabilities, balance and coordination difficulties and cognitive difficulties, including memory and concentration impairment. Ms W assessed MGC to have impaired preverbal communication skills impacting her ability to communicate effectively, and severe expressive and receptive language difficulties which impact on her ability to follow instructions, to understand other people and to communicate effectively.

31. All the witnesses at the hearing who commented on the issue were of the view that MGC is unable to understand the nature and effect of important lifestyle decisions that may need to be made and is unable to make informed decisions.

32. Ms Stanford, separate representative, submitted that MGC was a person for whom the Tribunal could make a guardianship order.

33. We were satisfied that MGC has disabilities, including an intellectual disability, which cause her to have impaired decision-making capacity for important personal, health and lifestyle decisions. She is at least partially incapable of managing her person and needs supervision or assistance to function in society. She is a person for whom the Tribunal could make a guardianship order.

Should we make a guardianship order, and if so, what order should we make?

34. When considering making an order, we must have regard to MGC’s views, if we were able to obtain them. We are also required to consider the importance of preserving any existing family relationships and particular cultural and linguistic environments as well as the practicability of her being provided with services without the need for an order: s 14(2) of the Act.

35. We must consider each of these matters. If we need to consider different or competing issues, we undertake a balancing exercise. We consider any other relevant evidence. We must have regard to the principles set out in s 4 of the Act, in particular that the interests and welfare of MGC are paramount. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, we refer to it in our reasons.

36. MGC attended the hearing but because of her disabilities she was unable to give her views to the Tribunal.

37. It was clear during the hearing that there were very different views in relation to what would be in MGC's best interests. However the evidence raised a number of areas in which it might be in MGC’s interests to appoint a guardian with decision-making power.

38. Ms Robinson's submissions focused on who should be appointed as guardian rather than the preliminary issue of whether we should make a guardianship order.

39. Kelly Stanford, separate representative, expressed the view that a guardianship order should be made, and that the guardian should have functions of accommodation, medical and dental consent, health care and services.

Services

40. In his guardianship application NZT, NDIS support coordinator who works for the disability service provider, expressed the view that MGC was unable to make medical and other lifestyle decisions for herself. He reported his understanding that the previous facility manager (Ms V) had been acting as MGC’s plan nominee, but no longer worked at the facility. He expressed concern that MGC had no guardian to assist with lifestyle decisions, in particular no active plan nominee to assist in plan reviews and to sign service agreements to put NDIS-funded services in place. MGC was said to have funding for therapy intervention from an occupational therapist, speech therapist and behavioural clinician but she had no plan nominee or guardian to sign service agreements and no capacity to sign for herself.

41. Before the hearing, NZT advised the Tribunal that the aged care service provider was ‘not happy about’ the NCAT application, which was seen as putting her at risk, that the facility had raised their concerns with the family and that the family had asked that all NDIS services should be cancelled until the hearing date. He provided the aged care service provider and the Tribunal with records of attempts he and his predecessor had made to contact MGC’s family. These records included a report that NDIS had advised that in 2019 MGC’s parents had consented to Ms V (the former facility manager) acting on their behalf.

42. At the hearing NZT’s evidence was supported by Ms U, manager, support coordination with the disability service provider.

43. In her application, OYC claimed that MGC’s care and ‘guardianship arrangement’ had been managed by her parents KAC and Mr Z all MGC’s life and that they had made all decisions for her care ‘without issue to date.’ There was no suggestion of any past appointment of a guardian.

44. She expressed concern that NZT, who she described as unknown to her or her parents, was seeking to become decision maker for MGC. At the hearing it was clarified that, as stated in his application, NZT did not seek to be appointed guardian and proposed the appointment of the Public Guardian.

45. OYC claimed that she had been contacted regularly by the aged care facility and had ‘routinely’ signed documents, including an advanced care directive and restrictive practices form. She expressed a concern that the aged care facility had entered an agreement with the disability service provider to provide NDIS support coordination services without her parents’ knowledge or consent. She mistakenly thought that this would have been within their powers as persons responsible. She continued: ‘The Nursing Home has advised that they do not have records of when these services are being provided – [MGC] is not supervised.’

46. Ms X, Ms W and Ms T, behaviour support practitioner, all reported that the aged care facility had reported this year that MGC has no or limited family contact. Ms X expressed concern at her social isolation, reliance on community support workers for engagement and community access and her lack of age-appropriate social interactions. Ms X also detailed concerns that despite seventeen visits to the facility by an OT since a new wheelchair was provided in January 2021, on almost every visit MGC was observed to be poorly positioned in the wheelchair. There were also said to have been challenges with staff consistency in transfers and, more generally, challenges with communication between MGC’s family and NDIS services.

40. Ms U advised that she had never been told of any family involved and that in the past all liaison had been with Ms V, the former facility manager. She said they would have welcomed family involvement and would have dealt with the family had they had access to them. She reported that providers had generally been unable to get family contact details from the facility and that when on one occasion an NDIS planner had made contact, MGC’s parents had reportedly described MGC as a ‘vegetable’. Ms U’s understanding was that the family was not involved and did not want to be involved with the NDIS.

41. She spoke of MGC’s need for further assessments and equipment and expressed concern that now that the family and the facility had put the NDIS-funded services on hold, the only contact MGC has is with the aged care facility staff. Ms U also expressed concern in relation to the assistance MGC is not receiving. She referred us to the reports from OT, speech therapy and the behaviour support practitioner in relation to steps taken and suggested to improve MGC’s quality of life and to address her postural and eating issues.

42. MGC has been receiving NDIS funding and services since 2018-2019, including a contribution to the aged care facility fees. Ms U explained that this would not have occurred had there not been an initial consent by the family. She told us that the present plan was in place until February 2024. MGC had received regular services in the past and there had been meetings with facility staff. Indeed Ms V had sought increased services for MGC. In addition to the issue of cancelled services there was now said to be a need for a guardian to sign service agreements as MGC lacks the capacity to do this.

43. KAC told us that she was not aware of the position in relation to NDIS. She told us that she did not visit her daughter who did not recognise her. She also said she had been advised not to visit as it upset her. She did recall dealing with Ms V in the past but did not know who she had spoken to in the facility on the last occasion. She said she had never been asked to sign NDIS papers.

44. OYC told us that she had not been aware that MGC was receiving NDIS-funded services and had not given thought to such a possibility until after NZT lodged his guardianship application. She told us that pre-COVID-19 she had visited MGC about every six months. She had not seen her since COVID-19 but had met with the facility staff and spoken with the care director.

45. OYC confirmed that she had cancelled the NDIS services because she did not know who the providers were or who assessed need, monitored or reviewed the services. She suggested that she could not get details from the facility until the recently provided care plan she received with the papers for the proceedings. When asked about her concerns after she had received the provider reports, OYC said she was not comfortable and had not had a lot of time to review the documents. She said that instead of the present arrangements she wanted MGC to be assessed by a specialist medical officer and for the most appropriate services to then be provided. She said that she wanted MGC to have whatever services benefitted her but that she had stopped the services because she did not know ‘these people’. She acknowledged that she had had no involvement with the NDIS and was not aware of the process.

46. OYC told us that MGC has not been on outings and that she and her mother would like her to stay within the facility grounds unless one of them was with her. KAC objected to any proposal that MGC should leave the facility grounds, saying that she did not know who would take her out. There was evidence from Ms X that MGC had not left the facility for some five years before being taken outside by community staff. Issues were raised about the inability of support staff to take MGC on supervised excursions in her wheelchair in the present circumstances. The facility staff were said not to allow MGC to leave the grounds. There were also funding issues in relation to taking her out in some form of transport.

47. Ms W was critical of the aged care service provider’s Care Plan which she understood had last been updated on 29 August 2020 and of the aged care service provider’s then reported failure to obtain an updated report on MGC’s swallowing difficulties or to clarify the nature of meal modifications. She also reported concerns as to the extent to which MGC was supervised during mealtimes.

48. Ms X detailed additional supports which would be of benefit to MGC.

49. The facility staff spoke of the need for better communication with NDIS providers so that they could work together as a team.

50. Ms T, behaviour support practitioner, reported on 20 April 2023 that MGC had ‘no behaviours of concern reported’ so that it was intended to produce a behaviour support plan to increase what was seen as insufficient NDIS funding and to work on aspects relating to improvement of her quality of life. She reported that staff at the aged care facility did not allow MGC access to the community, that she was not engaged in any planned weekly activities in the facility, that there were issues about correct wheelchair use and meals that met her prescribed dietary needs given her gagging risk and that an alternative residential environment may better suit her needs. The social work report elaborated on the dietary issues. Facility staff told us that now they have been informed of these issues they are addressing them.

51. Ms T reported her understanding that MGC had had no connexion or involvement with her family for almost the entirety of her lengthy stay at the aged care facility, that making contact with the family had been most difficult and that it was reported that the family felt that professional services were not of benefit to MGC as it was their view that not much could be done for her or with her in her state. However, according to Ms T it was the view of the engaged professionals that most certainly services could assist and benefit MGC in improving her skill sets, capacities and quality of life and suggested that the fact that this had not occurred earlier had been to her disadvantage.

52. It is not possible for the Tribunal to clarify exactly what has occurred in the past, to make findings in relation to the various assertions of neglect on the evidence before us or to resolve concerns as to the adequacy of the present NDIS-funded services and service providers. However what is clear is that there are considerable communication and other concerns raised, that MGC’s access to support workers funded by NDIS has halted and that there is no-one authorised to sign future support agreements or to be involved in any plan reviews. It was not disputed that it would be in MGC’s best interests for a guardian to be appointed to make decisions in relation to personal services she should receive.

53. It is not for a family member who is not a guardian or a plan nominee to make a decision as to whether to terminate or put on hold NDIS-funded services. That is also not within the role of a person responsible. A decision as to restoration of the services, if that has not occurred, will be a decision for an appointed guardian with a services function. Such a guardian would also have the power to be involved in relation to any plan review, choice of appropriate support coordinators and support providers and to make other decisions in relation to services to be provided to MGC. We noted that the reports from the speech pathologist, occupational therapist and behaviour support practitioner identify steps that are being taken or are proposed through NDIS-funded services to address significant issues relevant to MGC’s quality of life. The appointment of a guardian with a services function will facilitate this process while also addressing any concerns as to the choice of service providers.

Accommodation

61. In addition, the material before us raised concerns as to the extent to which MGC’s needs are being met and her best interests served while she lives in an aged care facility. NZT suggested that a guardian should be involved in exploring the possibility of a move by MGC to supported independent living. He reported that the multidisciplinary health team involved with MGC supported such a move as in MGC’s interests. This is consistent with comments in the written reports from allied health services providers. NZT also expressed concern, echoed in the written reports, that MGC is not permitted to go on outings such as to give her community contact.

62. Ms T expressed the view that MGC would benefit from residing in a semi-independent living environment where supports could focus more attention on her (due to the better support worker to resident ratio) and where she could be provided with more opportunities for personal and capacity growth, inclusion and participation. Ms W also saw such accommodation as better suited to MGC’s communicative difficulties due to the increased staff ratios and ongoing NDIS support and suggested that it would better address her high support needs, including during mealtimes.

63. When we raised the issue of decisions to be made in relation to possible different accommodation as suggested by the health professionals, KAC objected. OYC said that MGC had been in the facility for so long and that they knew the staff who were like family to MGC. She was happy for MGC to stay in the local aged care facility. She spoke of the convenience of living close to the facility in terms of her access to facility staff.

64. Later it was explained by KAC that she was opposed to any move by MGC to supported living because she had been raped by other residents as a child living in a group home. KAC said that she had only found this out from the hospital.

65. Ms U clarified that if supported independent living was contemplated it could be an all-female house with female staff and suggested that such accommodation would better meet MGC’s high care needs. She explained that a much higher level of care could be provided in that way, compared to what the aged care facility could offer given their staff to resident ratios. She also spoke of the importance of involving the family in any choice of other accommodation.

66. The evidence satisfied us that it would be in MGC’s interests and consistent with her welfare for an appointed guardian to have power to make decisions in relation to where she should live. Again, it is not for the Tribunal to decide on accommodation but in circumstances where the involved health professionals from outside the facility have raised a concern that MGC’s needs may be more adequately met in a facility other than the aged care facility, this should be a decision for an appointed guardian.

Health care and medical and dental treatment consent

67. In relation to health care and medical and dental consents, OYC told us of one occasion when, after being contacted by facility staff, she had taken MGC to hospital after a fall. She said that sometimes the facility rang her about medical treatment for MGC and sometimes they rang her mother. She suggested that it was ad hoc. She had left health care decisions to her parents. She acknowledged that she should have been more involved.

68. KAC said that she had left health care decisions to the facility and that they did not ring her anymore.

69. It was of concern that no family responsibility was taken in relation to MGC’s healthcare and that it was not clear whether the consent of a person responsible to medical treatment or changes in medication was being sought on a consistent basis. There seems to have been ad hoc, rather unsatisfactory and unclear engagement with the family in relation to medical and dental consent and the question of healthcare seems to have been left to the facility. We were of the view that it would be in MGC’s interests for an appointed guardian to have a proactive role in arranging her overall health care and to make it clear to the facility and any treating doctors that the consent of such guardian should be obtained in advance of any medical or dental treatment for MGC.

Any other functions

70. Mr S, aged care service provider NDIS business partner, raised the issue of a possible need for a hearing or an order in relation to the use of restrictive practices.

71. The evidence in relation to restrictive practices was incomplete, unclear and inconsistent.

72. Ms R, care director, told us that MGC was on long term medication as part of management of her clinical needs. She was said to take Haloperidol on a regular basis. Ms R suggested that there were behavioural charts that described behaviours of concern. These were not in evidence. She also appeared to suggest that as there had been no diagnosis, the medication was not for the treatment of a diagnosed condition and so must be a chemical restraint. This suggested that a full medical review may well be appropriate.

73. Moreover, apparently in response to a Tribunal request for a medical report addressing the issue of a chemical restraint, in a very recent health professional report, Dr Y stated briefly: “Due to her disability, she has global impairment. She has episodes of agitation and behavioural disturbance. She is on Haloperidol to help settle her agitation.”

74. Ms R told us that as this was not a new medication, they were trying to get a review, but at present they relied on the regular three monthly medication review by the GP. The facility staff in the hearing were not sure when use of the medication had started.

75. We were told that there were reports of behaviours of concern in 2019 but that no changes had been noted since then. Ms R said that MGC made loud noises or cried and grabbed staff clothing when trying to get attention to her needs. This was said to be disturbing to other people.

76. When asked if she had consented to the use of restrictive practices, OYC told us that she had understood that the medication was for MGC’s epilepsy. She had not been told of any behaviours of concern on MGC’s part, except that she was once told that she could get agitated in large crowds with a lot of noise.

77. We were provided with a copy of a Summary Care Plan and a Care Plan - Behaviour Support Plan (BSP) from the aged care service provider dated 18 April 2023 in which it was stated that MGC (misspelt as [MGC]) was subject to a ‘restrictive practice- chemical routine’.

78. Her ‘identified behaviours and triggers’ were described as:

• ‘I have been known to be physically aggressive towards staff hitting and pushing staff. However, this has not happened since 2019.

• I can [be] verbally disruptive calling out making loud noises but that is how I communicate because I am non-verbal, so I make noises to communicate to staff to get staff's attention for care needs.’

79. It was also reported in the care plan that there had been no incidents recorded in the last three months, despite mention at the hearing of some incident reports in relation to what were generally referred to as MGC’s behaviours of concern.

80. Nevertheless, the BSP stated that MGC had been prescribed haloperidol (Serenace) as ‘regular medication for physical and verbal agitation.’ The commencement date was ‘pre admission.’ Elsewhere in the report it was noted that MGC had been admitted to the facility at the age of 17 in 1988. If correct, this would mean that MGC has been on the same psychotropic medication on an ongoing basis for over 35 years.

81. In the absence of further information, it would appear from the description of MGC’s identified behaviours in the BSP that this may have been a response to what might be perceived as her non-verbal communication with staff.

82. In the BSP the medication was described as ongoing and the frequency was described as ‘BD,’ in other words, twice daily. The reason for this was explained as to: ‘prevent self-harm and staff.” It was said that ‘informed consent’ had been obtained from MGC’s sister in June 2022 and March 2023. There appears to be no recognition of the requirement in NSW for consent to the use of a regulated restrictive practice to be given by an appointed guardian. Confusingly, the medication list for MGC printed out on 18 April 2023 includes only one daily dose of Serenace, not the twice daily dose referred to in the BSP.

83. Ms Stanford, the separate representative, saw a need for an appointed guardian to get to the bottom of what she described as the chemical restraint issue, why psychotropic medication was prescribed and whether it was appropriate, bearing in mind that OYC had been told that the medication was for epilepsy and the fact that that the very recently provided health professional report form did not clarify precisely why the medication was prescribed. She did not support conferral of a restrictive practices function on the evidence presently before us.

84. On the limited and conflicting information before us we were not able to clarify why the medication in issue was prescribed and hence whether MGC is subject to a regulated restrictive practice within the applicable legislative scheme, and we could not be satisfied that we should confer on an appointed guardian the power to consent or withhold consent to the use of a restrictive practice. We were of the view that this issue required clarification. If a restrictive practice within the legislative scheme applicable to aged care facilities in NSW is being used, such that the consent of an appointed guardian with a restrictive practices function is required, the facility, the guardian or any other concerned person should seek review by the Tribunal clarifying what is in fact in place, why and what is intended.

85. We considered whether making an order of the nature foreshadowed would have any effect on MGC’s existing family relationships. While her mother was strongly opposed to any consideration of the possibility of alternative accommodation and her mother and her sister both expressly opposed the notion that MGC should ever leave the grounds of the aged care facility on any kind of excursion in their absence, we bore in mind that on her own evidence KAC does not visit her daughter in the aged care facility and OYC’s visits were infrequent and have not resumed since before COVID-19. All of the reports that commented on MGC’s contact with her family (including the BSP from the aged care facility which states that she ‘does not have family or friends who visit her’) referred to reports from facility staff that she did not have contact with her family or had very limited contact with her family. In these circumstances we were not persuaded that making an order of the nature contemplated would have any adverse effect on her existing family relationships. There was no relevant cultural or linguistic environment identified.

86. However the concerns raised as to what has occurred in the past satisfied us that the present informal arrangements have not been meeting MGC’s need for decisions that are in her best interests and consistent with her welfare to be made in significant lifestyle areas. We were of the view that in the absence of a formal order it would not be as practicable for her to be provided with needed services.

87. We decided that we should appoint a guardian to make accommodation, health care, medical and dental consent and services decisions.

Whom should we appoint as guardian, and how long should the order last?

88. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can properly be appointed: s 15(3) of the Act.

89. The Supreme Court has held that:

“the proper meaning to be given to [section 15(3)] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

90. In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able to exercise the functions in accordance with the principles set out in s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].

91. We must also be satisfied that any proposed private guardian has a personality which is generally compatible with that of MGC, has no undue conflict of interest and is both willing and able to exercise the functions of the proposed order: s 17 of the Act.

92. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

93. OYC proposed that she should be appointed guardian for her sister MGC as her parents did not wish to apply being ‘conscious of their own limitations.’ She claimed in the application that as the only viable immediate family member she was able to manage MGC’s care and guardianship. At the hearing she said that she believed that she was the best person for the role as a sister who would advocate and do the best for MGC at all times, taking over from her parents. She said she would have to take her mother’s opposition to a move to supported living accommodation into account.

94. OYC has a very senior role in corporate governance in public health administration. The CEO of the organisation for which OYC works attested to her high integrity and her understanding as to OYC’s care for her sister’s ongoing quality of care and safety. A cousin also supported OYC’s application, although this support is premised on the misunderstanding as to the nature of NZT’s application. A ‘dear friend’ and former workmate also wrote in support of OYC’s ‘experience in providing a lifetime of loving care and assistance to [MGC]’. There was no clarification as to what this had entailed.

95. Courtney Robinson, who appeared as solicitor for OYC, explained the circumstances in which her client had been unsure of the position in relation to NDIS services and the nature of the application lodged by NZT. Notwithstanding OYC’s evidence, Ms Robinson reported that she would be happy for the cancelled services to continue immediately.

96. Ms Robinson submitted that we should appoint OYC as guardian. She suggested that OYC has a good relationship with the nursing home and spoke to staff regularly about her sister. Ms Robinson referred to the limited communication there had been with OYC, instead of with KAC. She was said to want the opportunity to discuss and review information and to make decisions consistent with MGC’s ‘independence’ and quality of life being improved. It was pointed out that she had responded when contacted by the facility in relation to health care issues and has taken her sister to hospital. Ms Robinson suggested that if the advice from professionals as to MGC’s needs was at odds with the views of MGC’s parents OYC ultimately intended to take the advice of the professionals. She was said to be willing to review and consider any alternative accommodation suggestion and to set up regular liaison meetings with NDIS support providers, to meet with the nursing home and, if possible, with the GP. She intended to continue to focus on MGC’s care needs. It was stressed that she was a family member who knew her sister’s history and valued her welfare.

97. Ms Stanford expressed concern that historically the family, including OYC, had not been involved or hands on in relation to MGC’s needs, care or support. Nor had OYC visited regularly or assisted on a day to day or regular basis. Ms Stanford expressed respect for the fact that from OYC’s perspective her parents had been the decision makers for MGC but also expressed the view that at present there was a situation of high emotion and OYC may not be best placed to make the significant decisions that appeared to be needed in the near future in MGC’s best interests. In light of this and what had been an ongoing lack of involvement with MGC Ms Stanford was of the view that the Public Guardian should be appointed.

98. We had regard to all the evidence and submissions in considering the statutory requirements for the appointment of a private guardian.

99. We were not satisfied that OYC should be appointed guardian for MGC at this time. OYC has had very limited direct involvement with her sister and has not visited her since before COVID-19, despite the fact that she lives close to the aged care facility. OYC acknowledged that she could not identify MGC’s preferences and needs without assistance from others. She attributed this to the fact that MGC was non-verbal. There was no evidence of regular interaction, although we accepted that OYC has responded to specific concerns raised by the aged care facility. The mere fact of familial relationship does not suffice. There was insufficient evidence for us to make a positive finding that we were satisfied that OYC’s personality is generally compatible with MGC’s personality as required under s 17(1)(a) of the Act. We recognise that circumstances may change with fresh evidence in the future should OYC choose to develop her relationship with MGC by regular direct contact with the benefit of increased information about MGC and her communication methods, needs and wants.

100. In any event, while we were satisfied that there is no undue conflict of interest as required under s 17(1)(b) of the Act, on all the evidence we were not satisfied that at present OYC is willing and able to exercise the functions conferred by the proposed guardianship order as required under s 17(1)(c) of that Act. Of particular concern is her limited knowledge or apparent understanding of what is in MGC’s best interests and consistent with her welfare and the impact of her mother’s strong views on OYC’s present willingness and ability to exercise functions, especially the accommodation and services functions, in a manner that is in MGC’s best interests and consistent with her welfare. We accepted that OYC has consented to medical treatment for her sister and would be willing and able to continue to do so and to have overall responsibility for MGC’s health care. While OYC’s solicitor suggested that she would act in accordance with the views of health professionals in this respect, OYC’s evidence at the hearing was guarded and she was opposed to any excursion by MGC outside the facility grounds (despite the clear concern of the health professionals about MGC’s social isolation and the potential positive impact of such outings). This increased our concern in this respect.

101. Moreover, we had regard to s 15(3) of the Act, but accepted the submission of Ms Stanford and on the present evidence could not be satisfied that at present the appointment of OYC as guardian for MGC will result in the policy considerations and principles in the Act being given effect, in particular the principles in s 4 of that Act which require protection from neglect, encouragement, as far as possible, for MGC to live a normal life in the community and that paramountcy be given to MGC’s interests and welfare. It was of concern that OYC reacted to the first guardianship application by stopping all MGC’s NDIS-funded services, apparently without consideration of whether such services were of benefit to her. We also had regard to her opposition to any excursion outside the facility, her possible deference to her mother’s views in relation to where MGC should live and her lack of direct involvement with MGC. At present we could not be satisfied that OYC would be able to exercise all the functions in accordance with the s 4 principles of the Act.

102. We decided to appoint the Public Guardian.

103. However, we decided to make an order for only six months. As submitted by Ms Stanford, we were satisfied that this would be in MGC’s interests. There are significant decisions, particularly in relation to services and accommodation, which are likely to be needed in the near future.

104. This period will allow time for the significant communication gaps between the family, care providers and NDIS support and services workers to be bridged and to ensure that MGC is receiving needed services on a regular basis with the assistance of informed decision-making by the Public Guardian. It is to be hoped that by that time there will be evidence that MGC’s social isolation and need for age-appropriate interactions will be taken into account in decision-making and that concerns about the level of care from the facility, the need for annual reviews that do not appear to have occurred, and the lack of family involvement and support will be addressed. There is also a need for clarification of the chemical restraint issue.

105. As Ms Stanford suggested, it may be that OYC will then be in a position to demonstrate that she meets the statutory requirements for appointment, that the high emotions will have settled and that she can step in and take over from the Public Guardian and act in her sister’s best interests. The Tribunal will review who should be the guardian and the functions needed at the expiration of the order.

THE SECOND GUARDIANSHIP APPLICATION

106. We made a guardianship order in response to the first guardianship application and considered the issues raised in the second application in doing so. Accordingly, we dismissed the second guardianship application as superfluous.

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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: 30 August 2023