MS
[2020] WASAT 146
•25 NOVEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MS [2020] WASAT 146
MEMBER: PRESIDENT PRITCHARD
DR E MARILLIER, MEMBER
MR J MANSVELD, MEMBER
HEARD: 9 SEPTEMBER 2020
DELIVERED : 25 NOVEMBER 2020
FILE NO/S: GAA 2779 of 2020
MS
Represented Person
Catchwords:
Guardianship - Application pursuant to s 40(1) of the Guardianship and Administration Act 1990 (WA) - Where represented person over the age of 18 years and an NDIS recipient - Where represented person previously subject of informal arrangements that involved consent to the use of restrictive practices - Introduction of NDIS scheme in Western Australia and State policy to regulate the use of restrictive practices - Whether consent from a guardian to the use of restrictive practices on represented person is required in Western Australia in light of NDIS scheme and State policy - General observations on the nature of restrictive practices, the legal consequences of the use of restrictive practices, and the regulation of the use of restrictive practices in Western Australia - Whether criteria for appointment of a guardian are met and a guardian should be appointed - Whether legal authority of guardian extends to consenting to the use of restrictive practices - Whether a specific authority to consent to the use of restrictive practices is necessary
Legislation:
Age of Majority Act 1972 (WA), s 5(4), s 5(1)(a)
Criminal Code (WA), s 25
Family Court Act 1997 (WA), s 68, s 69(1), s 84(1), s 84(2), s 85
Family Law Act 1975 (Cth)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40(1), s 43, s 44, s 45(1), s 45(2), s 46, Pt 9D, Div 2, s 110
National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth), s 16, r 9(2), r 10(2), r 15, r 20, r 20(1), r 20(2), r 22, r 24(1), r 26, Pt 4
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), r 7, r 20
National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018 (Cth)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
National Disability Insurance Scheme Act 2013 (Cth), s 10, s 10A, s 40, s 73E, s 73Z, s 181A(2), s 181(b), s 181H, s 181H(f)
Result:
Joint limited appointed guardians
Order to be reviewed by 3 April 2024
Category: B
Representation:
Counsel:
| Represented Person | : | No appearance |
| Applicants | : | In Person |
| First Interested Party | : | Ms J E Rhodes & Ms P Bagdonavicius |
| Second Interested Party | : | No appearance |
| Third Interested Party | : | In Person |
| Fourth Interested Party | : | Ms R Panetta |
| Department of Communities | : | Ms T Clark |
| Therapy Focus | : | Ms B Zanetti |
| Autism Association of Western Australia | : | Ms C Quirk & Ms J McKenna Kerr |
| NDIS Quality and Safeguards Commission | : | Mr A Corradan |
Solicitors:
| Represented Person | : | No appearance |
| Applicants | : | N/A |
| First Interested Party | : | State Solicitors Office |
| Second Interested Party | : | No appearance |
| Third Interested Party | : | N/A |
| Fourth Interested Party | : | State Solicitors Office |
| Department of Communities | : | N/A |
| Therapy Focus | : | N/A |
| Autism Association of Western Australia | : | Jackson McDonald |
| NDIS Quality and Safeguards Commission | : | N/A |
Case(s) referred to in decision(s):
B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360
BQM [2019] NSWCATGD 1
BTO [2004] WAGAB 2
Counsel v Glynn [2017] WASC 7
Department of Corrective Services and GY [2012] WASAT 225
Director General, Department of Community Services; Re Thomas [2009] NSWSC 217
Director General, Department of Family and Community Services and Minister for Family and Community Services v Sally [2009] NSWSC 114
ES [2014] WASAT 91
Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615
Gillick v West Norfolk and Wisbeck Area Health Authority [1986] 1 AC 112
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88
HZC [2019] NSWCATGD 8
In re T (Adult Refusal of Treatment) [1993] Fam 95
JN v TD [2016] WASAT 9
JP [2008] WASAT 3
KKD [2019] NSWCATGD 4
MGP [2020] WASAT 65
MLI [2006] QGAAT 31
NLA [2015] VCAT 1104
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338
Re Ben [2020] ACAT 82
Re GZK [2020] NSWCATGD 5
Re HZC [2019] NSWCATGD 8
Re VZM [2020] NSWCATGD 25
Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218
TS [2019] WASAT 56
Warnakulasuriya v The Queen [2012] WASCA 10
Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
TS and DS have applied, pursuant to s 40(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), to be appointed joint guardians for their son MS (Application).
MS is 19 years of age. He suffers from severe autism with a verbal impairment, and significant cognitive limitations. He exhibits a range of aggressive and destructive behaviours, some of which can pose risks to his own safety, or to the safety of others.
MS receives funding from the NDIS, as a result of which he accesses support from the Department of Communities, Disability Services (Department) and other service providers. MS is presently residing in emergency supported accommodation provided by the Department. He is under the supervision of carers for 24 hours a day.
TS and DS were appointed as MS' administrators under the GA Act in 2017.
For the reasons set out below, there is no doubt that some of the criteria for the appointment of a guardian under s 43(1) of the GA Act are met in this case, namely that MS is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight care or control in the interests of his own health and safety, and for the protection of others. However, until now, there has been no need to appoint a guardian for MS.[1]
[1] Cf GA Act s 43(1)(c).
That situation has now changed because Western Australia will shortly become a participant in the scheme established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and related legislation (collectively, NDIS scheme). Relevantly for the purposes of the Application, the effect of the commencement of the NDIS scheme in Western Australia will be that service providers funded by the NDIS scheme (NDIS service providers) will be required to obtain the consent of a person to whom services are provided (NDIS recipients) or their guardian, in respect of the use of certain practices, known as restrictive practices, which may be adopted in connection with the provision of services to the NDIS recipient.
An application for guardianship orders under the GA Act would ordinarily be heard by a single member of the Tribunal. However, as a result of the impending commencement of the NDIS scheme in Western Australia, the Tribunal anticipates (and indeed, is already seeing) a marked increase in applications for guardianship orders, to authorise guardians to give consent to the use of restrictive practices in respect of NDIS recipients under the NDIS scheme. In order to provide some guidance to parties in those circumstances, the Tribunal listed the Application before a Full Tribunal.
The Tribunal invited, and was assisted by, written and/or oral submissions from the Public Advocate, the Department, the Autism Association of Western Australia, the NDIS Quality and Safeguards Commission (Commission), and from MS' carers and service providers. The Tribunal also requested that the Attorney General for Western Australia appear as an amicus curiae to assist the Tribunal by making submissions on some of the issues raised by the Application. The Attorney General acceded to that request, and the Tribunal was greatly assisted by the written and oral submissions of counsel for the Attorney General.
MS' parents also made submissions in support of the Application. MS' medical conditions are such that it was not possible to ascertain his views in respect of the Application.
For the reasons which follow, we find that the requirements of s 43(1) of the GA Act are satisfied: namely, that MS is over 18 years of age, is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight, care or control in the interests of his own health and safety or for the protection of others. We are also satisfied that MS is in need of a guardian. TS and DS should be appointed the joint limited guardians for MS. Limited powers of guardianship should be conferred, including a power for MS' guardians to consent to the use of restrictive practices in accordance with a behaviour support plan (BSP) developed by a behaviour support practitioner, as amended from time to time.
In these reasons for decision, we deal with the following matters:
(a)criteria for the appointment of a guardian and key principles applicable to the Application;
(b)terminology;
(c)factual background;
(d)regulation of the use of restrictive practices in Western Australia;
(e)our reasons for concluding that the requirements of s 43(1)(a) and (b) of the GA Act are satisfied;
(f)whether the criterion in s 43(1)(c) of the GA Act is satisfied: is there a need for the appointment of a guardian?
(g)who should be appointed as guardian, what functions should be conferred, and should any conditions be imposed in respect of consent to the use of restrictive practices?
(h)duration of the order; and
(i)concluding observations.
(a) Criteria for the appointment of a guardian, and key principles applicable to the Application
The appointment of a guardian requires that the Tribunal be satisfied as to the matters set out in s 43(1)(a)-(c) of the GA Act. The Tribunal must be satisfied that the proposed represented person has reached 18 years of age; is incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety or for the protection of other persons; and is in need of a guardian.
If these criteria are satisfied then the Tribunal is required to consider whether a plenary or limited guardian or joint guardians should be appointed, what functions should be given to any limited guardian appointed, who should be appointed as the guardian, and whether the appointment should be made subject to any conditions or restrictions.[2]
[2] GA Act s 43(1)(d) and (e), (4) and (5), s 44, s 46.
In considering the Application, we have borne in mind that the primary concern of the Tribunal in proceedings under the GA Act is the best interests of the represented person[3] (in this case, MS).
[3] GA Act s 4(2).
We have also borne in mind the fundamental principle that every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their person, until the contrary is proved to the satisfaction of the Tribunal.[4]
[4] GA Act s 4(3).
We note that, when considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[5] However, in this case, for the reasons outlined above, it was not possible to ascertain MS' views and wishes in respect of the Application, or the issues it raises.
[5] GA Act s 4(7).
Finally, we note that the GA Act provides that a plenary guardian shall not be appointed if the SAT is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the represented person.[6] In addition, the GA Act makes clear that any order appointing a limited guardian should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[7]
(b) Terminology
[6] GA Act s 4(5).
[7] GA Act s 4(6).
At the outset, it is convenient to set out the meaning of some key terms to which we make repeated reference in these reasons: 'restrictive practices', 'behaviour support' and 'behaviour support plan'.
Restrictive practices
The term 'restrictive practices' is defined in slightly different ways in different legislative or policy contexts.
In the NDIS Act, the term 'restrictive practice' is defined in the following way:[8]
[R]estrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability[.]
[8] NDIS Act s 10.
As we explain below, the legislation comprising the NDIS Scheme includes the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (RP Rules). The RP Rules apply only to 'regulated restrictive practices' which are defined (in r 6) to include any practice which is, or involves, any of the following:
(a)seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;
(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 restraint, which is the use of a device to prevent, restrict, or subdue a person's movement for the primary purpose of influencing a person's behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;
(d)physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person's body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.
(e)environmental restraint, which restricts a person's free access to all parts of their environment, including items or activities.
The definitions of some of the classes of regulated restrictive practices direct attention to the purpose for which the practice is used, and thus seek to confine 'regulated restrictive practices' to practices which are used for the purpose of influencing the NDIS recipient's behaviour, rather than for other purposes, such as therapeutic purposes. In relation to seclusion and environmental restraints, however, the RP Rules appear to assume that those practices could only ever be used for the purposes of influencing behaviour.
In these reasons, when we refer to 'restrictive practices', we mean to refer to that term with the meaning it has in the NDIS Act, as illustrated by the various categories of regulated restrictive practices referred to in the RP Rules. However, it is also relevant to note that 'restrictive practices' are the subject of policy documents developed and used in Western Australia to guide service providers in the use of restrictive practices, both at present, and after 1 December 2020. (We discuss these policy documents in greater detail later in these reasons.)
The Code of Practice: A Guide for the Elimination of Restrictive Practices[9] (Code of Practice) is a policy document presently applicable in Western Australia, which provides guidance to service providers as to the circumstances in which restrictive practices may be used. In the Code of Practice, the term 'restrictive practices' is defined to mean:[10]
[A]ny practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm.
[9] Code of Practice: A Guide for the Elimination of Restrictive Practices, 3rd ed, 2019, Department of Communities.
[10] Code of Practice p 15.
We note for completeness that the reference in the Code of Practice to the primary purpose (or indeed, to any purpose) of a restrictive practice is not an element of the definition of 'restrictive practice' under the NDIS Act. The definition in the NDIS Act looks simply at the effect of the practice or intervention, rather than to its purpose. However, as we have already observed, some of the classes of regulated restrictive practices (as defined under the RP Rules) do incorporate reference to the purpose for which the restrictive practice was used.
As we explain below, the 'Authorisation of Restrictive Practices in Funded Disability Services Policy' (Policy) will govern the authorisation of the use of restrictive practices in relation to NDIS recipients in Western Australia from 1 December 2020, but is intended to provide guidance to service providers in the interim. In the Policy, the meaning given to the term 'restrictive practice' is identical to the definition in the NDIS Act.
Behaviour support and BSPs
While the terms 'behaviour support' and 'behaviour support plan' are used in the NDIS Act, neither is defined.
The starting point in understanding the meaning of those terms in the NDIS Act is the ordinary meaning of the words used. The word 'behaviour' refers to the manner in which a person behaves or conducts himself or herself[11] while the meaning of the word 'support' includes 'to uphold (a person, cause, policy, etc.) by aid or countenance; back; second (efforts, aims, etc.)'.[12] A 'plan' is 'a scheme of action or procedure'.[13] Having regard to its ordinary meaning, a 'behaviour support plan' is a scheme or proposal which sets out actions or procedures designed to facilitate behaviour support, namely to influence or uphold certain behaviour or conduct by a person.
[11] Macquarie Dictionary Online.
[12] Macquarie Dictionary Online.
[13] Macquarie Dictionary Online.
The context in which the term 'behaviour support' is used in the NDIS Act, however, implies that 'support' is to be provided to influence or encourage positive, as opposed to challenging, behaviours or conduct, by an NDIS recipient. Furthermore, it is also apparent that the NDIS Act contemplates that a critical component of that support will be directed to a reduction in the use of restrictive practices as a means of encouraging, maintaining or upholding an NDIS recipient's behaviour or conduct. That much, in our view, can be discerned from the references to the 'behaviour support function' of the Commissioner[14] under the NDIS Act.[15]
[14] See NDIS Act s 181A(2).
[15] NDIS Act s 181H.
The Commissioner's behaviour support function is 'to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices by NDIS providers' in a variety of ways, including by building capability in the development of behaviour support for NDIS recipients by implementing a competency framework for NDIS providers whose registration includes the provision of behaviour support assessments and developing BSPs;[16] developing policy and guidance materials, and providing education and training, in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers;[17] and by monitoring compliance by NDIS providers with any conditions of their registration relating to BSPs, and collecting data about the use of behaviour supports and restrictive practices by NDIS providers,[18] including restrictive practices which are not of a kind authorised by the participating jurisdiction and which are not in accordance with a BSP.[19]
[16] NDIS Act s 181H(a).
[17] NDIS Act s 181H(b) and (c).
[18] NDIS Act s 181H(d).
[19] NDIS Act s 73Z; National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth); National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) s 16.
The RP Rules do not usefully define a BSP[20] but they do regulate the manner in which a BSP will be developed. The RP Rules require that a BSP be developed by a specialist behaviour support provider, after undertaking a behaviour support assessment, including a functional behavioural assessment, of the person with a disability.[21] The specialist behaviour support provider must take all reasonable steps to reduce and eliminate the need for the use of regulated restrictive practices in relation to the person with a disability.[22] The specialist behaviour support provider must also consult with the NDIS recipient and their family, carers, guardians or other relevant persons, and with any NDIS provider, and must specifically consult with them about the proposed inclusion in the BSP of a regulated restrictive practice.[23]
[20] 'Behaviour support plan' is defined in rule 5 of the RP Rules to mean 'a comprehensive behaviour support plan' or 'an interim behaviour support plan'. Neither of those terms is defined.
[21] RP Rules r 20(5).
[22] RP Rules r 20(3).
[23] RP Rules r 20(3)(d)-(f) and (4).
The RP Rules require that a BSP for an NDIS recipient must be developed in accordance with any authorisation process (however described) in the State or Territory in which the regulated restrictive practice is, or is proposed to be, used.[24] The requirement to comply with the authorisation process of a State or Territory is what has given rise to the need for a guardian to be appointed for MS. We discuss the authorisation process in greater detail later in these reasons.
[24] RP Rules r 20(2).
When we refer to 'behaviour support' or BSPs in these reasons, we use those terms with the meanings they have in the NDIS Act, and in the case of BSPs, as those documents are described in the RP Rules.
BSPs are also referred to in the Code of Practice and the Policy, to which we have already referred, and in ways which are consistent with the meaning we have attributed to 'behaviour support' and BSPs in the NDIS Act. According to the Code of Practice, a BSP 'is a plan developed for a person with a disability which specifies a range of strategies to be used in supporting the person's behaviour, including proactive strategies to build on the person's strengths and increase their life skills'.[25]
[25] Code of Practice p13.
The Policy does not define a BSP, but indicates what must be included in it, namely 'strategies that are evidence-based and person-centred, and that address the person with disability's needs and the functions of the behaviour'.[26]
[26] Policy p 4.
The Policy also acknowledges that a BSP may include restrictive practices that it is recommended be taken and that these should:[27]
[27] Policy p 4.
•be clearly identified in the BSP;
•be used only as a last resort in response to a risk of harm to the person with disability and/or others, and after the Implementing Provider has explored and applied other evidence-based, person-centred and proactive strategies;
•be the least restrictive response possible in the circumstances to ensure the safety of the person and/or others;
•reduce the risk of harm to the person with disability and/or others;
•be in proportion to the potential negative consequence or risk of harm; and
•be used for the shortest possible time to ensure the safety of the person with disability and/or others.
(c) Factual background
MS' autism means that he has difficulty with emotional regulation and impulse control. As a result, he has multiple episodes of aggressive and destructive behaviours, which are unpredictable. For ease of reference we will refer to these collectively as MS' challenging behaviours.
MS' challenging behaviours can be directed to himself or others, including staff and other residents. Behaviours MS directs at himself can include throwing himself to the floor, hitting or punching his face, headbutting property, punching his genitals and pulling at them, self-isolation (locking himself in his room), lying in a foetal position and crying. Behaviours directed at others can include biting, hitting, pinching, pushing, and pulling others to the floor. MS' challenging behaviours can also include intentionally breaking or destroying items in his possession or within reach, such as toys, plates, games, and clothing (both his own, or others'), his mattress, bedding, walls, doorways, door handles, or floor coverings. On occasions when MS is in the community (where he is closely supervised by carers), his destructive behaviour may involve damaging fences or kicking cars or number plates. There have been occasions when MS is travelling in a car and has damaged the car by ripping the upholstery or panelling. There is also a risk that MS will wander away from his accommodation or from carers, although this is a less frequent occurrence.
The reasons for these challenging behaviours include dysregulation, an obsession with destroying particular items, a desire or need for different sensory input, difficulties in communicating his emotions, boredom, or a desire for property to be repaired or replaced. Despite very close supervision from his carers, and their efforts to adopt strategies to minimise these challenging behaviours, MS continues to engage in such behaviours.
Since 2016, MS has lived in supported accommodation funded by the Disability Services Commission of Western Australia. That has been necessary because MS' challenging behaviours mean that it is not safe for MS, or his family, if MS resides at the family home. MS lives in a residence with other persons who require accommodation with a high level of security. He is supported by highly trained carers for 24 hours a day. The Department is presently building a home for MS and one other resident. It will be custom built to suit their sensory, emotional and behavioural needs.
MS' BSP
A BSP has been developed for MS by a behaviour support clinician and occupational therapist, BZ. The BSP was developed in consultation with TS, staff of the Department, and a speech pathologist and occupational therapist. A copy of the BSP was provided to the Tribunal. It was in draft form, having been prepared in anticipation of the commencement of the NDIS scheme in Western Australia.[28] However, as we understood its content, the listed restrictive practices set out those restrictive practices which are presently being used in relation to MS.
[28] ts 74, 9 September 2020.
The BSP identifies MS' needs, his challenging behaviours (which we have outlined above), behavioural goals directed to assisting MS to develop strategies to cope with his sensory and emotional needs, and the various strategies employed by his carers to avoid triggering his challenging behaviours, or to minimise their consequences when they occur.
The BSP also includes a schedule of restrictive practices which may be used in relation to MS, or which are present in his environment. The BSP sets out the nature and frequency of use of these restrictive practices, any intention to discontinue or 'fade out' the use of these practices, and the rationale for why these restrictive practices are said to be the least restrictive way of ensuring MS' safety.
To date, the use of each of these restrictive practices has been approved by MS' family.
We have summarised the key aspects of this part of the BSP below.
| Type of restrictive practice | Frequency, 'fade out' plan, explanation as least restrictive option |
| Chemical · Medication | · Given orally in response to agitation/aggression/when overwhelmed · On instructions of treating psychiatrist · Least restrictive option - only administered when other positive behaviour strategies have been implemented and ineffective and when MS is showing extreme signs of agitation, aggression or emotional distress |
| Environmental · Wardrobe locked and no access to clothing | · MS is unable to access his clothing at any time, as he will often rip and tear his clothing, which must then be replaced · MS is able to select his own clothing to wear, but access to clothing must be granted by a carer · Proposal to trial shutting the wardrobe but not locking it, and providing MS with other items that he can rip and tear, instead of his clothing |
| Environmental · Shared bathroom and toilet facilities are locked spaces | · MS has a toilet in his bedroom for use at any time. · Bathrooms and shower facilities are used by all residents. They must have locks for the privacy and safety of residents · MS is able to request to use the shower whenever he would like to. However, if given unsupervised access, MS has been known to play by pouring out the contents of soap containers. Locking bathrooms also minimises this risk |
| Environmental · Vehicle modifications: safety barrier from driver; polycarbonate windows; reinforced doors; locked doors with external access only | · Due to MS' challenging behaviours, these measures are considered necessary to keep MS, the driver, and members of the community safe whilst MS is travelling by car · These modifications also minimise the risk of damage to the vehicle, which would result in MS being unable to access a suitable vehicle whilst repairs are carried out |
| Environmental · Television and media kept in locked Perspex cabinet | · Permanent environmental restriction in MS' accommodation - not designed for him specifically · Consideration to be given to whether MS may be given access to self-controlled media within his bedroom (within appropriate protective casing, and with control measures to protect from property damage) |
| Environmental · No access to kitchen, pantry, fridge | · Permanent environmental restriction in MS' accommodation - not designed for him specifically, and being gradually removed in preparation for future accommodation arrangements · Will not be in place in MS' permanent accommodation |
| Environmental · No access to laundry | · Permanent environmental restriction in MS' accommodation - not designed for him specifically, and being gradually removed in preparation for future accommodation arrangements · Will not be in place in MS' permanent accommodation |
| Environmental · All internal doors to the house have automatic locking mechanisms e.g. to separate rooms, shared spaces and office | · Permanent environmental restriction in MS' accommodation - not designed for him specifically · Many residents, including MS, may try to access areas of the house that are occupied by another resident that may trigger behaviours or be unsafe for MS. This practice therefore ensures the safety of MS and other residents of the house. · MS is able to communicate his desire to go to particular areas of the house · Consideration should be given to whether any alternative lock options could be used in MS' current accommodation · Consideration of the use of this restrictive practice, or alternative options, in MS' future accommodation will be required to preserve privacy and safety for staff accommodation and for the accommodation of the other residents of the house |
| Environmental · Dining and lounge room furniture is bolted to the floor | · Permanent environmental restriction in MS' accommodation - not designed for him specifically - unable to be removed in current setting · Consideration of a gradual reduction in restrictions in MS' future accommodation will be required |
| Seclusion · MS is locked in his bedroom at night | · Permanent environmental restriction in MS' accommodation - not designed for him specifically - unable to be removed in current setting · This restrictive practice is currently required to avoid other residents trying to enter MS' room when moving about the house, and so that MS cannot access the shared corridor outside his room when another resident is moving around the house. This practice is required to ensure all residents and staff are safe. · MS has access to his own bathroom and toilet which he is able to use during the night. · MS is heavily monitored at night, as he can experience sleeplessness or behaviours of concern during the night. There are always staff present who are able to respond if MS requires assistance. · This restrictive practice is not endorsed for use in MS' future accommodation |
| Seclusion · MS is told to go to his room or outside when his behaviour, or that of another resident, escalates | · This practice is in response to the unpredictable behaviour of other residents - not designed for MS specifically and not endorsed for MS' future accommodation · It is designed to ensure MS is protected and is safe |
Two observations may immediately be made about the restrictive practices set out in MS' BSP. First, not all of these restrictive practices are designed to respond to MS' challenging behaviours. The first four are restrictive practices directed specifically to MS, but the remainder are features of MS' accommodation or are practices which are used in response to the behaviour of other residents at that accommodation.
Secondly, with one possible exception, none of the restrictive practices specifically directed to MS appears to have a purpose unrelated to MS' behaviour (for example, a therapeutic purpose). The possible exception is the medication which MS has been prescribed, which may be administered in situations where he is experiencing extreme agitation, aggression or emotional distress. There may be room for debate as to whether the administration of medication in those circumstances may properly be characterised as medical treatment.[29] We did not have sufficient evidence to permit a determination to be made on that question and, in the end, it is not necessary for us to make a finding about that question.
(d) Regulation of the use of restrictive practices in Western Australia
Legal consequences of the use of restrictive practices
[29] See, e.g., the submissions made by counsel for the Public Advocate: ts 71, 9 September 2020.
It is important not to lose sight of the fact that, depending on the nature of the restrictive practice in question, its commission, in the absence of consent by, or on behalf of, the person subject to the practice, may have a number of consequences under the law. A restrictive practice which involves the application of physical force of some kind (such as the use of a harness to restrain a person from moving about in, or exiting from, a car) may constitute an assault under the criminal law or a trespass to the person, giving rise to civil law remedies.[30] Similarly, securing residents in a residential facility by locking their bedroom doors, without the consent of, or on behalf of, the residents, may give rise to civil actions for false imprisonment, or to criminal prosecution for deprivation of liberty.[31] In some cases, circumstances of emergency or necessity may excuse the conduct notwithstanding the absence of consent (such as in respect of the provision of medical treatment to a person, in the case of an emergency) so as to relieve the service provider of liability for what would otherwise be an assault to the person.[32] Generally speaking, however, consent to the use of a restrictive practice is essential because '[c]onsent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact.'[33]
Present position
[30] Cf, e.g., In re T (Adult: Refusal of Treatment) [1993] Fam 95, 102 (Lord Donaldson MR).
[31] Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338, 344.
[32][32] See s 25 Criminal Code (WA); Warnakulasuriya v The Queen [2012] WASCA 10 at [43] and [56]-[57]; see also In re T (Adult: Refusal of Treatment) [1993] Fam 95, 102-103 (Lord Donaldson MR), 120 (Butler-Sloss LJ), 122 (Staughton LJ); Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621, 627; Counsel v Glynn [2017] WASC 7; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [31]-[34].
[33] Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 233 (Mason CJ, Dawson, Toohey and Gaudron JJ).
In Western Australia, the use of restrictive practices in the context of the provision of services to individuals with disabilities is presently 'regulated' in the Code of Practice (a copy of which was before the Tribunal). To say that the use of restrictive practices is presently 'regulated' by the Code of Practice is undoubtedly a misnomer because, as counsel for the Attorney General acknowledged,[34] that document is merely a policy document that is intended to provide guidance. It is far from clear whether there exists any sanction for non-compliance with the Code of Practice itself.
[34] ts 29-30, 33, 9 September 2020.
Relevantly, the Code of Practice encourages the elimination of restrictive practices, and makes clear that if restrictive practices are used, their use should ordinarily take place in circumstances identified and explained in a BSP:[35]
[35] Code of Practice p 3-6.
The Code recognises there are exceptional circumstances in which the use of restrictive practices may be necessary, such as emergency situations or to address risks as part of a [BSP]. There are a range of considerations in relation to the use of restrictive practices, including that they should only be used as a last resort after considering alternative strategies, and in accordance with a [BSP]. …
The Code can assist the disability sector to develop operational policies and guidelines for eliminating the use of restrictive practices. This ensures that appropriate safeguards are in place where there is no alternative but to use restrictive practices to protect the safety and welfare of individuals and others.
… As part of the NDIS, a quality and safeguarding system will be implemented. This will include reporting and oversight arrangements to reduce and eliminate the use of restrictive practices.
…
Service providers should:
…
•have policies, procedures and tools in place to safeguard the rights of people with disability and to identify and monitor the use of restrictive practices.
•ensure [BSPs] reflect Positive Behaviour Support principles.
•maintain a register of all restrictive practices in place which should include progress towards developing action plans to minimise and eliminate the use of restrictive practices.
In addition:
…
•[BSPs] are key practice and accountability documents and should be in place for all people identified as experiencing challenging behaviours who are subject to restrictive practices.
The Code of Practice makes clear the importance of obtaining the consent of a service recipient in all matters, and especially for the use of restrictive practices:[36]
[36] Code of Practice p 7.
Consent
Service providers should ensure that the person provides consent in relation to all matters that affect them, including consenting to any restrictive practice that may be used on them.
…
Generally, consent will be valid if:
•it is voluntary - the person must make the decision themselves and must not be unduly influenced by anyone else (e.g. health professionals, family, friends).
•it is informed - the person must receive sufficient information about the proposed restrictive practice to enable them to make an informed decision.
•it is current - the consent must at least be reviewed as part of the annual review to ensure it remains up-to-date. More frequent reviews may be necessary, especially if the person's circumstances change.
•the person has capacity to understand the information provided to them to make the decision.
•it covers the restrictive practice to be used - the restrictive practice must fall within the scope of consent that has been given.
•service providers should use internal policy and procedures for determining a person's capacity to give informed consent.
…
In certain circumstances there may be:
•uncertainty about the person's capacity to provide informed consent, and/or
•an absence of engaged family members, carers, friends or advocates to assist the person to make decisions, and/or
•uncertainty about what decisions and actions are in the person's best interests.
In these instances, the service provider should seek the advice and guidance of the Office of the Public Advocate for adults, and the [Department] for children under 18 years of age, as to the correct action to take.
Service providers should ensure there are ways for individuals to withdraw their consent for a restrictive practice. When this occurs, planned use of the restrictive practice must cease and providers will need to explore short and long-term solutions with the individual to ensure effective and safe service delivery.
…
A restrictive practice that has been agreed upon by the service provider and relevant stakeholders can only be implemented:
•with the informed consent of the person involved, using the provider's procedures for determining capacity to consent, or when the person is determined to not have the capacity to provide consent, the consent of the person with the authority to make decisions on behalf of the person, or from an appointed guardian with the relevant authority;
…
A restrictive practice should only be implemented when consent has been obtained, with the exception of emergency situations.
(Emphasis added)
Although the position is not entirely clear, the Code of Practice appears to contemplate that in the case of an NDIS recipient who does not have capacity to give consent to the use of restrictive practices, consent may, but need not, be given by a guardian. That tends to suggest that informal means of consent on behalf of an NDIS recipient may have been considered acceptable under the Code of Practice. We note that in so far as MS' BSP contemplates the use of restrictive practices, his family have to date been the persons from whom consent has been obtained for the use of those practices.
Use of restrictive practices under the NDIS scheme
We have set out below a broad overview of the requirements of the NDIS scheme, in relation to restrictive practices, which will shortly apply in Western Australia, and the mechanism by which those requirements will apply.
Relevantly for present purposes, and in very general terms, the NDIS scheme establishes criteria for the participation by individuals with disabilities (that is, NDIS recipients) in order to receive NDIS funding and support, and regulates the conduct of NDIS service providers in those host jurisdictions[37] which have agreed to become 'participating jurisdictions'.[38] A significant aspect of that regulation involves reporting requirements associated with registration as a provider of services under the scheme.
[37] 'Host jurisdictions' are defined in s 10 of the NDIS Act, and are specified in the National Disability Insurance Scheme (Host Jurisdiction) Specification 2016 (Cth) cl 4 and Sch 1. Western Australia is specified therein as a 'host jurisdiction'.
[38] 'Participating jurisdiction' is defined in s 10A of the NDIS Act.
The legislation constituting the NDIS scheme recognises that restrictive practices may be used by NDIS service providers. The NDIS scheme legislation contemplates that a participating jurisdiction may have its own requirements for authorising or regulating the use of restrictive practices in that jurisdiction. The NDIS scheme legislation requires NDIS service providers to comply with any such requirements of the participating jurisdiction.
The RP Rules require that NDIS providers use regulated restrictive practices only on certain conditions. It is a condition of the NDIS service provider's registration that any use of regulated restrictive practices be in accordance with a participating jurisdiction's authorisation process, and that the service provider lodge evidence with the Commissioner that the use is authorised as soon as reasonably practicable after the use of the practice in relation to a person.[39]
[39] RP Rules r 9(2).
It is also a requirement of the registration of an NDIS provider that a regulated restrictive practice be used only in accordance with a BSP, and that the NDIS service provider agrees to demonstrate compliance with that requirement if required to do so by the Commissioner.[40]
[40] RP Rules r 10(2).
Furthermore, the registration of an NDIS service provider is subject to a requirement to keep written information in relation to the use of regulated restrictive practices in relation to NDIS recipients, including a description of the use of the practice, the behaviour of the recipient that led to the use of that practice, and the persons involved.[41]
[41] RP Rules r 15.
Under the NDIS scheme, persons who provide specialist behaviour support services to NDIS recipients, which includes preparing a BSP for any NDIS recipient, must also be registered.[42] The registration of specialist behaviour support providers (who prepare BSPs) is subject to compliance with certain conditions.[43] To obtain registration the person must have demonstrated competency in prescribed standards.[44] These standards are designed to facilitate compliance with authorisation and consent requirements in a participating jurisdiction.
[42] NDIS Act s 73E; National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) r 7.
[43] RP Rules r 20(1).
[44] National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) r 20.
Specialist behaviour support providers must lodge, with the Commission, any BSP which contains a regulated restrictive practice.[45] In turn, any comprehensive BSP developed by a specialist behaviour support provider must be reviewed by an NDIS behaviour support practitioner at least every 12 months while the BSP is in force, and as soon as possible following any change in circumstances which requires the BSP to be amended.[46]
[45] RP Rules r 24(1).
[46] RP Rules r 22.
As we have already mentioned, the RP Rules provide that any BSP for an NDIS recipient must be developed in accordance with any authorisation process (however described) in the State or Territory in which the regulated restrictive practice is, or is proposed to be, used.[47]
[47] RP Rules r 20(2).
We turn, now, to explain how this requirement will operate in conjunction with the authorisation process applicable in Western Australia after 1 December 2020.
Application of the NDIS scheme in Western Australia and the use of restrictive practices in relation to NDIS recipients
Currently, Western Australia is not a participating jurisdiction under the NDIS Act. As a result, the NDIS scheme does not apply to service providers in this State which provide supports or services to NDIS recipients in this State. Western Australia has announced its intention to become a participating jurisdiction from 1 December 2020. The consequence of becoming a 'participating jurisdiction' under the NDIS scheme is that the NDIS scheme will apply to service providers operating in this jurisdiction, and the Commission will thereafter be able to exercise its powers in relation to those NDIS service providers.
From 1 December 2020, transitional arrangements will come into force in Western Australia, under the NDIS scheme, which will require NDIS service providers to transition to meet the requirements of regulation by the Commission under the NDIS scheme.[48]
[48] See, e.g., National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018 (Cth).
Once Western Australia becomes a participating jurisdiction under the NDIS scheme on 1 December 2020, special transitional arrangements will also apply under the RP Rules in relation to the use of regulated restrictive practices in relation to any NDIS recipient. Those transitional arrangements are set out in Pt 4 of the RP Rules. If the NDIS provider provides supports under a BSP which contains a regulated restrictive practice which is authorised in accordance with an authorisation process of the participating jurisdiction, then the requirement for the NDIS provider to comply with the RP Rules is modified, by r 26 of the RP Rules, as follows:
(2)The person or entity is not required to comply with sections 9 to 15 of this instrument in relation to the person with disability and the use of the regulated restrictive practice during the period:
(a)starting at the start of the transition time; and
(b)ending at the earliest of the following:
(i)if the provider does not comply with subsection (3) within the period required by paragraph (4)(b) - the end of that period;
(ii)if the existing plan is reviewed for any reason, including as directed by the Commissioner -the day the review of the plan is completed;
(iii)if the Commissioner gives a written notice to the provider that this subsection no longer applies to the provider - the day specified in the notice (which must be at least 14 days after the notice is given);
(iv)the end of 12 months after the transition time.
(3)The person or entity must notify the Commissioner of the existence of the [BSP], including the regulated restrictive practices that it contains and the expiry date of the plan.
(4)A notification under subsection (3):
(a)must be given in the form approved by the Commissioner; and
(b)must be given within 3 months after the start of the transition time, or such longer period as the Commissioner allows.
(5)The registration of the person or entity as a registered NDIS provider is subject to the following conditions:
(a)the provider must comply with subsection (3);
(b)if requested by the Commissioner - the person or entity must provide a copy of the [BSP] to the Commissioner within the period requested by the Commissioner.
Authorisation of the use of restrictive practices in Western Australia
In May 2020, the Department issued the Policy, which establishes the requirements for the authorisation of restrictive practices in relation to people who are receiving disability services funded through the NDIS (that is, NDIS recipients) or by the State Government.
The Policy relevantly provides:
Under the NDIS Framework, the State Government is responsible for establishing arrangements for the authorisation of restrictive practices in NDIS services in WA.
The Policy establishes the requirements for authorisation of restrictive practices in relation to people who are receiving disability services funded through the NDIS or by the State Government.
This Policy will operate for an interim period while a legislative framework is developed. This interim period is expected to coincide with the transition to full scheme NDIS in WA, which is due to be completed by 1 July 2023, but may conclude earlier with the commencement of legislation.
…
In the context of NDIS-funded services, the requirements set out in this Policy are additional to those set by the NDIS Quality and Safeguards Commission (NDIS Commission).
In the context of State-funded disability services, the requirements set out in this Policy are additional to the safeguarding requirements set by the [Department].
The Explanatory Notes issued with the Policy provide some further explanation about its intended operation, including in the period prior to 1 December 2020. The Explanatory Notes relevantly provide:
On 1 December 2020, quality and safeguarding functions under the [NDIS scheme] in Western Australia (WA) will transition from the [Department] to the [Commission].
State Government arrangements will apply until the new legislation comes into effect on 1 December 2020.
The [Policy] outlines the State's authorisation arrangements which will be mandatory from 1 December 2020. The Policy is an important safeguard for people with disability which builds on the State's current quality and safeguarding system.
The following notes provide information on how [NDIS] service providers can prepare for implementation of the Policy.
Pre-implementation phase of the Policy (8 June 2020 - 30 November 2020)
During the pre-implementation phase of the Policy, the current State quality and safeguarding arrangements in WA will continue under the Code of Practice: A Guide for the Elimination of Restrictive Practices, 3rd ed, (2019) (the Code of Practice). …
…
The pre-implementation phrase of the Policy is an opportunity to prepare for the operation and practical requirements of the Policy … .
[NDIS] Service providers are encouraged to familiarise their organisation and other stakeholders with the contents of the Policy prior to the transition to the [Commission] on 1 December 2020.
In preparation for transition, services providers should consider how to meet the following three essential requirements for the Policy:
1.Ensure that a [BSP] is in place for all individuals with behaviour support needs, and that any restrictive practices are included in the BSP;
2.Ensure that consent has been obtained for the use of restrictive practices; and
3.Determine how to convene or access Authorisation Panels to make authorisation decisions.
The Policy can be referenced and used in the pre-implementation phase.
… From 1 December 2020, the Policy is mandatory … .
The Policy applies to 'practices that are defined as regulated restrictive practices in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 … [namely] … seclusion, chemical restraint, physical restraint, mechanical restraint and environmental restraint.'[49] Certain kinds of practices which would otherwise constitute restrictive practices are prohibited.[50]
[49] Policy cl 2.2; see also Appendix 2.
[50] The conduct which is prohibited includes certain kinds of physical restraints including the use of prone or supine restraint, and physical restraints that have the purpose or effect of compelling a person's compliance through the infliction of pain. Punitive approaches are also prohibited, including aversive practices, denial of key needs, and practices that limit or deny access to culture: see Policy, Appendix 2.
Clause 4.1 of the Policy sets out 3 requirements for the authorisation of a restrictive practice:
Authorisation must be obtained by an Implementing Provider for each regulated restrictive practice that is proposed to be implemented for a person with disability. This requires:
1.a [BSP];
2.consent; and
3.an authorisation decision by an Authorisation Panel.
In so far as the Policy mandates that the use of a regulated restrictive practice requires a BSP, the Policy reflects the requirements of the RP Rules in relation to the development of BSPs, including that the BSP be developed by a behaviour support practitioner, after undertaking a behaviour support assessment for the NDIS recipient, and after consulting with the NDIS recipient, their family, carers, guardian or other relevant person, and any NDIS service provider which will use the restrictive practice.
The requirements of the Policy for consent to the use of restrictive practices are as follows:
4.1.2Consent
Consent is the permission given by the person with disability with capacity to consent, or a person with authority to consent on the person's behalf when the person with disability does not have capacity to consent.
Where a BSP includes a recommended regulated restrictive practice, the Implementing Provider [that is, the NDIS service provider] must seek consent (defined in Appendix 2). If the person with disability is deemed not to have capacity to consent to the regulated restrictive practice, then the Implementing Provider must seek consent from the person with authority to make decisions on behalf of the person regarding the regulated restrictive practice.
Implementing Providers are responsible for developing internal policies and procedures to support consent processes that are person-centred and consistent with the law. This includes strategies to facilitate supported decision-making so that people with disability can access the support they need to make decisions and to communicate their needs and choices.
The person may deny or withdraw consent at any time. Denial or withdrawal of consent means a regulated restrictive practice is not authorised (see section 4.2 for more information).
(Emphasis added)
The Policy defines consent[51] as requiring five core characteristics, namely, that the consent is voluntary, informed, specific (in that it applies to the restrictive practice to be used), current (that is, that the consent must be reviewed regularly, and at least as part of the annual review of a BSP, to ensure that it is up to date), and that the consent is given by a person with capacity to understand the information provided to them to make the decision.
[51] Policy, Appendix 2.
The final aspect of the authorisation process set out in the Policy involves an Authorisation Panel established pursuant to the Policy. The Authorisation Panel must confirm that consent for the use of a restrictive practice has been appropriately obtained by the NDIS service provider.[52] In addition, the Authorisation Panel will also be required to review each regulated restrictive practice that is recommended in a BSP and decide whether to authorise each regulated restrictive practice, and whether conditions on the use of the restrictive practice should be imposed.[53] An authorisation for the use of a restrictive practice will have force for no more than twelve months.
Conclusions about consent for the use of restrictive practices
[52] Policy, cl 4.1.3.
[53] Policy, cl 4.1.3.
Nothing in the legislation comprising the NDIS scheme requires that consent to the use of restrictive practices may be given only by a guardian, if the NDIS recipient does not have the capacity to give that consent. The structure of the NDIS scheme at present is that authorisation for the use of restrictive practices is regulated by each participating jurisdiction. The NDIS scheme legislation does not impose any criteria for the authorisation process adopted in participating jurisdictions.
The authorisation process in Western Australia which will apply to the use of restrictive practices in respect of NDIS recipients during the transitional period commencing on 1 December 2020, and thereafter, is set out in the Policy. The Policy requires that if the NDIS recipient is deemed not to have capacity to consent to the use of restrictive practices, the NDIS service provider must seek that consent from 'the person with authority to make decisions on behalf of the person regarding the regulated restrictive practice'.
The Policy itself does not expressly require that that consent be given by a guardian. However it appears that NDIS service providers have taken the view that if an NDIS recipient does not have the capacity to consent to the use of restrictive practices, then that consent must be given by a person with formal authority to do so, such as a guardian.[54] Indeed, the Application was prompted by the fact that TS and DS understand that the consent of a guardian is now required for the use of restrictive practices as part of MS' BSP.
[54] ts 81-82, 9 September 2020 (counsel for the Commission, Mr Corradin).
It should be borne in mind, however, that the Policy is just that: a policy. Its requirements are not fixed in legislation nor are they immutable. Indeed, the Policy itself indicates that it will be reviewed on or about January 2022. Furthermore, the requirements for authorisation (including consent) for the use of restrictive practices will eventually be considered from the perspective of national regulation, given that one of the functions of the Commission is to support the development of nationally consistent approaches in relation to the use of restrictive practices.[55] The question whether the only process for authorising the use of restrictive practices in respect of an NDIS recipient who is unable to give consent should be by the appointment of a guardian for the NDIS recipient, or whether some other means of authorisation should be adopted, is a question of public policy over which reasonable minds may differ. The means by which any authorisation is given for the use of restrictive practices is an issue of critical importance, which warrants careful consideration, having regard to the best interests of NDIS recipients.
[55] NDIS Act s 181(b), s 181H(f).
Against that background, we turn to explain why we are satisfied that guardians should be appointed for MS.
(e) Our reasons for concluding that the requirements of s 43(1)(a) and (b) of the GA Act are satisfied
MS is over 18 years of age. The criterion in s 43(1)(a) of the GA Act is satisfied.
The evidence left no room for doubt that the requirements of s 43(1)(b) of the GA Act are satisfied. The Tribunal was provided with a report of Dr F dated 3 September 2020. Dr F is MS' psychiatrist. She reported that MS has a mental disability, namely autistic spectrum disorder with verbal impairment, and a mood disorder:
[MS] has lifelong severe Autism with verbal impairment. Previous assessments have asserted comorbid intellectual handicap. However as he is developing and his depression has been treated, his cognitive capacities are becoming more evident. He is still highly concrete and linear in his thinking. He will need ongoing neuropsych assessments …
Dr F expressed the view that MS was incapable of making reasonable decisions in relation to medical treatment and procedures, accommodation and services. In respect of each of these areas of decision making respectively, Dr F expressed the following opinions:
[MS] has poor interoception and very high pain tolerance ie he has limited awareness of his bodily functions and needs and does not comprehend when he needs medical attention eg numerous foot fractures and dental injuries from kicking and biting walls/furniture.
[MS] has limited capacity to cope with others, stimulation, novelty and hates change or any transitions. He cannot assist or decide in decisions other than express more aggression with change which serves to keep him in high dependency accommodation.
[MS] lacks executive function to identify or secure appropriate support. However, he does express his staff preferences through his non verbal behaviour … .
Dr F's opinion was consistent with the opinions set out in a number of earlier reports by Dr RC, who was MS' treating paediatrician. In his most recent report, prepared for the Tribunal and dated 14 July 2017, Dr RC expressed the view that MS did not have the capacity to make reasonable decisions in relation to medical treatment and procedures, accommodation or services. In a separate report of the same date, Dr RC expressed the view that testing had revealed that MS had a low average IQ, but that his adaptive scales were significantly low, and that this 'almost certainly reflected his diminished cognitive abilities associated with his autism'.[56]
[56] Report of Dr RC, dated 14 July 2017.
These opinions were also consistent with those set out in a report provided by Mr JM from one of the service providers which provides support services directed to enabling MS to participate in activities in the community. Mr JM expressed the view that MS was not able to understand and follow the advice of treating medical professionals, had 'nil' insight into his own medical condition and treatment, support and accommodation needs, but was able to accept appropriate services with support from family and providers.
Having regard to this evidence, we are satisfied, and we find, that MS is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person; and is in need of oversight, care or control in the interests of his own health and safety or for the protection of others. For the avoidance of doubt, we should make clear that our finding that MS is unable to make reasonable judgments in respect of matters relating to his person, necessarily includes a finding that he is unable to make reasonable judgments about whether to give his consent to the use of the restrictive practices set out in his BSP, or restrictive practices of any kind.
(f) Whether the criterion in s 43(1)(c) of the GA Act is satisfied: is there a need for the appointment of a guardian?
In this section of our reasons, we deal with the following matters:
(i)Must consent be given to the use of restrictive practices in relation to MS' behaviour?
(ii)Can consent be given, other than by the appointment of a guardian - for example by MS' parents, or by some other informal means?
(iii)Does the legal authority of a guardian extend to giving consent to the use of restrictive practices?
(iv)Conclusion - MS needs a guardian.
Must consent be given to the use of restrictive practices in relation to MS' behaviour?
Having regard to the potential legal implications for an NDIS service provider if they use restrictive practices in respect of an NDIS recipient, either the consent of the NDIS recipient, or the consent of some other person whose authority to consent is recognised by the law, is essential to avoid the risk of incurring criminal or civil liability for that conduct.
There will be no need for the appointment of a guardian to give consent to the use of restrictive practices in relation to MS if some other means presently exists to give such consent. The question which therefore must first be answered is whether anyone but a guardian appointed by the Tribunal has authority to give consent to the use of restrictive practices, on behalf of an adult person who lacks the capacity to give that consent themselves.
Irrespective of the legal answer to that question, the practical reality is that as NDIS service providers appear to be insistent on the existence of formal authority to consent to the use of restrictive practices, as opposed to reliance on informal arrangements, the appointment of a guardian effectively constitutes a practical requirement in order to ensure that MS receives the support of services funded under the NDIS scheme.
For completeness, we note that in the discussion which follows, we have not addressed the possibility that in some cases, an NDIS recipient may have appointed an enduring guardian. No such appointment has been made in this case. However, if an NDIS recipient had appointed an enduring guardian under an enduring power of guardianship,[57] the consent of that person may be an alternative means of obtaining consent for the use of restrictive practices in relation to the NDIS recipient.
Can consent be given, other than by the appointment of a guardian - for example by MS' parents, or by some other informal means?
[57] See GA Act Pt 9A.
If MS were less than 18 years of age, TS and DS could have given their consent to the use of some restrictive practices in relation to MS. (As we explain below, there are limits on the authority of parents to consent to particular kinds of conduct which would constitute restrictive practices.) However, both the common law, and statute in this State, establish that the authority of a parent to make decisions on behalf of a child comes to an end by the time the child reaches 18 years of age.
The common law has long recognised that parental rights in respect of a child relate to the person and the property of the child - to custody, care and control of the child and guardianship of the property of the child.[58] The responsibilities and powers of parents extend to the physical, mental, moral, educational and general welfare of the child.[59] Parental rights are recognised as deriving from the parental duties to maintain, protect and educate the child until the child reaches an age at which they can look after themselves and make their own decisions.[60] Consequently, those parental rights exist only so long as they are needed to enable the parent to carry out their parental duty to the child.[61] The common law also recognised that as the child's decision making ability developed and matured, as the child approached 18 years of age, the degree of parental control and responsibility that a parent was entitled to exercise over the child would diminish.[62] The common law thus recognised that a parent's responsibility for a child would give way to the child's right to make their own decisions when the child reached such a sufficient understanding and intelligence as to be capable of making up their own mind on a particular decision, for example, in respect of consent to medical care.[63] Once the child reached adulthood, however, a presumption existed at common law that that person had the capacity to make decisions on their own behalf.[64]
[58] See the discussion in Gillick v West Norfolk and Wisbeck Area Health Authority [1986] 1 AC 112, 184185 (Lord Scarman); see also, Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 314-315 (McHugh J); B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360, 396 (Nicholson CJ and O'Ryan J).
[59] Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 278 (Brennan J, referring, by way of comparison, to the powers of a custodian described in Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 626 (Gibbs J).
[60] Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 312 (McHugh J referring to Blackstone's Commentaries, 17th ed, 1830, vol 1, p452, 446-447).
[61] Gillick v West Norfolk and Wisbeck Area Health Authority [1986] 1 AC 112, 184-185 (Lord Scarman).
[62] See, eg, Gillick v West Norfolk and Wisbeck Area Health Authority [1986] 1 AC 112, 171 (Lord Fraser), 189 (Lord Scarman); Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 238 (Mason CJ, Dawson, Toohey and Gaudron JJ), 278 (Brennan J), 290-294 (Deane J), 314-315 (McHugh J).
[63] Gillick v West Norfolk and Wisbeck Area Health Authority [1986] 1 AC 112, 186 (Lord Scarman); Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 238 (Mason CJ, Dawson, Toohey and Gaudron JJ), see also at 315 (McHugh J).
[64] In re T (Adult: Refusal of Treatment) [1993] Fam 95, 115 (Lord Donaldson MR).
The age at which that presumption arises is now fixed by statute. For all the purposes of the laws of this State, and subject to any contrary legislative provision, once a person reaches 18 years of age, they attain 'full age and full capacity' - in other words, from that age, they are regarded as having full capacity, as an adult, to make decisions.[65] However, that 'does not affect any deficiency of juristic competency or capacity that is attributable to … mental infirmity or any other factor distinct from age'.[66] That is, the existence of capacity under the legislation is subject to the demonstration of an absence of such capacity as may be relevant to particular kinds of decision making.
[65] Age of Majority Act 1972 (WA) s 5(1)(a).
[66] Age of Majority Act 1972 (WA) s 5(4).
The same legal position, in the specific context of parental authority over children, is also established by the Family Court Act 1997 (WA) (FC Act). The FC Act provides that subject to any order of a court, each of the parents of a child who is under 18 years of age has 'parental responsibility' for the child.[67] 'Parental responsibility' is defined to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.[68] Implicit in the conferral of parental responsibility on the parents of a child under 18 years of age is the recognition that such parental authority ends once the child reaches 18 years of age.[69]
[67] FC Act s 69(1).
[68] FC Act s 68. For a discussion of the comparable provisions of the Family Law Act 1975 (Cth), see B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360, 396-397 (Nicholson CJ and O'Ryan J)
[69] Cf Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 237 (Mason CJ, Dawson, Toohey and Gaudron JJ).
In short, because MS has attained 18 years of age, the authority his parents had to make decisions on his behalf when he was a child is no longer recognised by the law. (In some contexts, informal decision making arrangements may suffice, but the present case is not one of those.)
Accordingly, TS and DS do not have authority, recognised by the law, to make decisions in relation to the use of restrictive practices in relation to MS, simply by virtue of being his parents.
Does the legal authority of a guardian extend to giving consent to the use of restrictive practices?
The next question which requires consideration is whether a guardian appointed under the GA Act has authority to give consent to the use of restrictive practices in respect of a represented person.
Under the GA Act, the authority of a plenary guardian extends to exercising:[70]
[A]ll of the functions in respect of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made -
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, save that plenary guardians do not have the right to chastise or punish a represented person.
[70] GA Act s 45(1).
A parenting order[71] may deal with one or more of the following matters:[72]
[71] A parenting order is an order of the Family Court of Western Australia, by which some or all aspects of parental responsibility may be conferred on a child's parents, or other persons charged with the responsibility of maintaining the child: see FC Act 84(1), s 85.
[72] FC Act s 84(2).
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
…
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
This list of parental responsibilities reflects the incidents of the authority of parents in respect of their child recognised by the common law.
The authority of a guardian appointed under the GA Act corresponds with the authority which may be conferred by a parenting order under the FC Act, and which itself reflects the authority of a parent in respect of a child lacking in mature understanding (that is, the parent of a child who has not developed sufficient maturity in decision making as to be able to exercise autonomy in any areas of decision making).
The GA Act expressly refers to a number of examples of the authority which may be exercised by a guardian, as part of the functions of a parent of a child lacking in mature understanding. A guardian may decide: where a represented person is to live, permanently or temporarily; with whom the represented person is to live; whether the represented person should work and if so, the nature or type of work, for whom the person is to be work and related matters; what treatment decisions should be made for the represented person (subject to some exceptions); what education and training the represented person is to receive; with whom the represented person is to associate; to represent the represented person as a next friend or guardian ad litem in litigation; and to make a research decision in relation to the represented person.[73]
[73] GA Act s 45(2).
While the authority which may be exercised by a guardian is thus broad in scope, it is not without limits. The GA Act itself recognises some limitations: for example, the functions of a guardian do not include the right to chastise or punish a represented person.[74] Moreover, parental authority itself is not without limits. That much has been confirmed in the context of decisions which have explored the extent of the parens patriae jurisdiction of State Supreme Courts. The parens patriae jurisdiction is extremely broad, and has been recognised to extend beyond the limits of parental authority.[75] By way of example, the Supreme Court of New South Wales has held that the power to authorise the indefinite confinement of a child involves acts or procedures ordinarily beyond the scope of parental responsibility, but that the breadth of the parens patriae jurisdiction permits the Court to authorise such confinement, if to do so is in the interests of the child's welfare. [76] The limits of parental authority which might be exercised by a guardian may therefore be relevant in relation to the use of some restrictive practices. However, it was not suggested that the present case involves the use of restrictive practices which are outside the limits of parental authority, and it is therefore unnecessary to say anything further about this issue.
[74] GA Act s 43(1).
[75] Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 259 (Mason CJ, Dawson, Toohey and Gaudron JJ), 301-302 (Deane J), cf 282-285 (Brennan J); see also the discussion in B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360, 387-388 (Nicholson CJ and O'Ryan J); see also Director General, Department of Community Services; Re Thomas [2009] NSWSC 217, [27]-[34] (Brereton J); Director General, Department of Family and Community Services and Minister for Family and Community Services v Sally [2009] NSWSC 114 [55]-[57] (Slattery J).
[76] Director General, Department of Community Services; Re Thomas [2009] NSWSC 217, [28], [40]; see also, Director General, Department of Family and Community Services and Minister for Family and Community Services v Sally [2009] NSWSC 1141.
This Tribunal has recognised, in many cases, that guardians have authority to authorise the use of restrictive practices or 'restraints' (as they have been described).[77] There is also ample authority in other jurisdictions, based on legislative provisions similar to the GA Act, to the effect that the authority of guardians extends to authorising the use of restrictive practices.[78]
[77] See, e.g., ES [2014] WASAT 91; JN v TD [2016] WASAT 9; TS [2019] WASAT 56.
[78] See, e.g., Re HZC [2019] NSWCATGD 8; Re VZM [2020] NSWCATGD 25 [56], Re Ben [2020] ACAT 82; Re GZK [2020] NSWCATGD 5.
We accept that the power of a plenary guardian appointed under the GA Act extends to authorising the use of restrictive practices, at least to the extent that authorisation of such practices would be within the scope of parental authority. Having regard to the restrictive practices which are identified in MS' BSP, we are satisfied that authority for the use of each of those would fall within the scope of parental authority, and thus is capable of being authorised by a guardian appointed under the GA Act.
Conclusion - MS needs a guardian
We are satisfied that a guardian should be appointed for MS in order to be able to make decisions as to whether consent should be given to the use of the restrictive practices identified in MS' BSP.
(g) What powers should be given to MS' guardian?
MS' parents, TS and DS, should be appointed his joint guardians. They have volunteered to undertake that role, they know MS' needs, they are clearly loving parents and strong advocates for their son, and we are satisfied that they are suitable to take on this role.[79]
[79] GA Act s 44(1).
There is no need in this case for the appointment of TS and DS as plenary guardians for MS. We are satisfied that the appointment of TS and DS as limited guardians under s 43(1) would be sufficient to meet MS' needs.[80]
[80] GA Act s 4(5).
We are satisfied that no less restrictive means is available, other than the appointment of a guardian or guardians, in order to meet MS' need for a person or persons able to exercise authority to determine whether the restrictive practices identified in his BSP should be used.
The question then arises as to what functions should be conferred on MS' guardians.
Is there a need for a guardian to be specifically authorised to consent to the use of restrictive practices?
The first question is whether a decision in relation to the use of the restrictive practices outlined in MS' BSP may be made by his guardians in the exercise of functions other than a function confined to the authorisation of restrictive practices.
Some of the restrictive practices identified in MS' BSP are used because they are permanent features of MS' present accommodation. As we have already observed, because those features of environmental restraint are not actually directed to MS but are simply permanent features of his accommodation, there may be an argument that their use has already been authorised as part of the consent given by MS' parents to his residing at that accommodation.[81] Alternatively, consent to such features might be given as part of an accommodation decision function conferred on a guardian.
[81] NLA [2015] VCAT 1104 [54]; cf MLI [2006] QGAAT 31 and KKD [2019] NSWCATGD 4; BQM [2019] NSWCATGD 1.
Similarly, in some cases, the consent of a guardian may not be required for the use of some practices, such as for the 'treatment' (as defined in the GA Act[82]) of a patient.[83] A 'treatment decision' means a decision to give or refuse consent to the commencement or continuation of any treatment of the person or the commencement or continuation of the person's participation in medical research.[84] So, for example, if a patient needs urgent treatment, is unable to make reasonable judgments in respect of the treatment, and if it is not practicable for the health professional to obtain a treatment decision from the patient's guardian, enduring guardian, or other person responsible under the GA Act, the health professional may provide the treatment to the patient in the absence of a treatment decision in relation to the patient.[85]
[82] The word 'treatment' means medical or surgical treatment, including a life sustaining measure or palliative care; dental treatment; or other health care, and other than as provided for in Parts 9B and 9E of the GA Act, 'treatment' does not include medical research: GA Act s 3.
[83] See GA Act Pt 9D, Div 2.
[84] GA Act s 3.
[85] GA Act s 110ZI; see also GA Act s 110ZIA.
Further, if a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to him or her, has not made an advance health directive,[86] and does not have an enduring guardian or guardian, or the guardian is not authorised, available or willing, to make a treatment decision for the patient,[87] then a person who is a 'person responsible'[88] for the patient may make a treatment decision in respect of the patient, subject to the requirements of the GA Act.[89] A 'person responsible' includes the patient's adult spouse or de facto partner; the patient's nearest relative (that is, spouse or de facto, child, parent or sibling) who maintains a close personal relationship with the patient; the adult who is the primary (and unremunerated) provider of care and support to the patient; or any other adult who maintains a close personal relationship with the patient, in the sense that that person has frequent personal contact with the patient and takes a genuine interest in the patient's welfare.[90] A treatment decision made by the person responsible has effect as if it had been made by the patient and the patient were of full legal capacity.[91]
[86] GA Act s 110ZJ(2).
[87] GA Act s 110ZJ(3) and (4).
[88] GA Act s 110ZD(1). The person responsible who may consent is the first in order of the persons listed in s 110ZD(3) who is of full legal capacity, is reasonably available, and is willing to make a treatment decision in respect of the treatment: s 110ZD(2).
[89] GA Act s 110ZJ(5). The treatment decisions which may be made do not include a decision to sterilize the patient: s 110ZD(7).
[90] GA Act s110ZD(2) - (6).
[91] GA Act s 110ZD(9).
The use of some physical or chemical restraints may fall within the definition of 'treatment' in the GA Act. Whether or not that is so is a question which would have to be determined on a case by case basis, and may depend on the reason for its use, the purpose to which it would be put, and who prescribed its use.[92] In BCB, the Guardianship and Administration Board explained that the use of a physical restraint to keep a broken bone in place so that the broken bone knits correctly would constitute 'treatment', but that if a care worker applied a similar restraint merely for the purpose of restraining the movement of a person for the personal convenience of the care worker, that was not likely to fall within the scope of treatment. The Board indicated that if a chemical restraint (such as a pharmaceutical drug) were prescribed to control inappropriate behaviour relating to an underlying medical condition, that would arguably constitute treatment, but if the drug was used for behaviour management for the convenience of staff, its use could not be said to be for medical treatment.[93] A more difficult question is whether 'medical treatment' extends to treatment to prevent a patient from causing harm to themselves or to alleviate the consequences of their medical condition.[94] As we have already observed, there was no evidence to enable us to determine whether the use of the medication MS has been prescribed, which has been characterised in MS' BSP as a chemical restraint, might be authorised by a guardian in the exercise of a function of making treatment decisions. It is unnecessary to determine that issue because it could not be suggested that all of the restrictive practices outlined in MS' BSP are capable of being authorised under one or more of the other functions of a guardian (such as to decide where MS is to live, or to make treatment decisions), without the need to also confer specific authority to make decisions in respect of the use of restrictive practices.
[92] Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338, 347-348;
[93] Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338, 347.
[94] Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338, 348; cf BTO [2004] WAGAB 2, [40].
Furthermore, we note that the approach adopted in the Tribunal has been to treat any intentional restriction of a person's movement or behaviour (other than the treatment of a diagnosed mental illness) as a restrictive practice, if consent to that practice is to be given by a guardian appointed under the GA Act. That approach has been taken to ensure transparency and to squarely raise for the guardian's consideration whether the intervention is in the best interests of the represented person and not for the convenience of care or medical staff.[95]
[95] See, eg, JP [2008] WASAT 3, [65] (Member Mansveld).
We endorse the continuation of that approach. The use of restrictive practices is contentious. Whether particular restrictive practices should be used in relation to MS will require a careful assessment of what is in his best interests. It is not the Tribunal's role to make an assessment of whether the use of the proposed restrictive practices in MS' BSP would be in his best interests. In making that observation we do not mean to imply any criticism of the use of those practices, but rather seek to emphasise that we make no judgment at all about those matters. An assessment of what is in MS' best interests in relation to the use of restrictive practices should properly be undertaken by his guardians, in the context of the circumstances which exist when such a decision is required.
In our view, in this case, the preferable course is to confer on MS' guardians a specific function of making decisions in respect of the use, on MS, of restrictive practices. Further, we are of the view that MS' guardians should also be given the functions of determining where MS is to live, to decide services to which he is to have access, and to make treatment decisions for MS. Conferral of the latter function will also ensure that no question arises as to whether MS' guardians have authority to consent to the use of prescribed drugs for MS, whether for therapeutic purposes or as a restrictive practice.[96]
Should any authority given to the guardian be confined to particular forms of restraint?
[96] We note that the Public Advocate submitted that TS and DS should be given authority to decide where and with whom MS is to live, to decide the services to which he has access and to consent to the use of chemical and environmental restrictive practices contained in MS' BSP: Submissions of the Public Advocate [26]-[37].
The next question is we should confine the guardians' authority in relation to restrictive practices to an authority to make a decision in relation to the use of particular restrictive practices, such as those presently described in MS' BSP. Such an approach might have the attraction that it would involve meeting MS' needs by a means which is the least restrictive of his freedom of decision and action.[97]
[97] Cf GA Act s 4(5).
Such an approach would also be consistent with the approach taken, in some other jurisdictions, to the conferral of functions on guardians. In some cases in the New South Wales Civil and Administrative Tribunal (NCAT), for example, limited guardians have been given authority to make decisions about specific restrictive practices, subject to conditions on the grant of consent by the guardian to such restrictive practices.[98] For example, in BQM,[99] the limited guardian was authorised to make decisions about the use of exclusionary time outs in identified break out areas within BQM's accommodation, to the use of a travel harness when travelling in a vehicle, to the routine use of psychotropic mediation, and to the locking of exit doors and gates.
[98] See, eg, BQM [2019] NSWCATGD 1; KKD [2019] NSWCATGD 4.
[99] BQM [2019] NSWCATGD 1.
However, in our view, such an approach would not be practicable, and for that reason would not be in MS' best interests. By way of illustration, if this approach were adopted, the Tribunal might consider each of the drugs prescribed for MS' use, and make a decision as to whether or not the use of that drug is for therapeutic purposes, and thereby to identify which drugs may be capable of use as a restrictive practice, and in what circumstances. However, if a doctor subsequently prescribed the use of a different drug for MS, and a question arose as to whether its use was for therapeutic purposes or constituted a restrictive practice, a further application would need to be made to the Tribunal to vary the functions of guardianship conferred on MS' guardians to enable them to make a decision as to the use of that drug as a restrictive practice for MS. That would inevitably involve delay, which would not be in MS' best interests.
In our view, it would not be in MS' best interests to confine the authority conferred on MS' guardians to decisions about the use of specific restrictive practices identified in the guardianship order. Instead, the preferable course is to permit MS' guardians to make decisions about the use of any restrictive practices which might be proposed by his NDIS service providers.
Should any conditions be attached to the guardian's authority to consent to the use of restrictive practices?
Different approaches have been taken to this issue in other jurisdictions, and even in the Tribunal itself.
In some cases in the NCAT, conditions have been imposed on the authority able to be exercised by limited guardians to decide on the use of specific restrictive practices.[100] In BQM,[101] for example, the NCAT imposed a condition that the guardian's consent be given to the use of specific restrictive practices only 'to address challenging behaviours within the context of the implementation or development of a comprehensive positive behaviour intervention and support programme (or within the context of positive programming addressing BQM's lifestyle and skills development needs) including strategies to ensure that she has reasonable opportunities to access the community'.
[100] See, e.g., BQM [2019] NSWCATGD 1; KKD [2019] NSWCATGD 4.
[101] BQM [2019] NSWCATGD 1.
In HZC,[102] the NCAT authorised joint limited guardians to give or withhold consent to chemical restraints, environmental restraints, mechanical restraints, and seclusion on condition that 'the guardians may only consent to the use of the types of restrictive practices permitted under this order to influence HZC's behaviour as a last resort to prevent HZC harming herself or others; and in accordance with a [BSP] which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon HZC, which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended'. The NCAT observed:[103]
Both the Tribunal and the former Guardianship Tribunal of NSW have had a long held practice of placing conditions upon an appointed guardian's ability to authorise the use of restrictive practices. The power to do so is granted in s 16(1)(d) of the [NSW Act]. The condition has usually been framed such that an appointed guardian may only consent to the use of restrictive practices to address challenging behaviours within the context of a comprehensive positive behaviour plan. …
We are of the view that it is appropriate that the Tribunal continue this practice but, in circumstances such as HZC, that is, as recipient of services from NDIS providers, reframe the condition so that it more closely equates with the primary regulatory requirements imposed by the [RP Rules] as they relate to the application of restrictive practices.
[102] HZC [2019] NSWCATGD 8.
[103] HZC [2019] NSWCATGD 8, [100]-[101].
The approach adopted in the Tribunal to the imposition of conditions on a guardian's power to authorise the use of restrictive practices has varied.[104]
[104] See, e.g., MGP [2020] WASAT 65; TS [2019] WASAT 56; ES [2014] WASAT 91; Department of Corrective Services and GY [2012] WASAT 225.
In our view, in so far as the guardians appointed for MS will be making decisions about the use of restrictive practices by NDIS service providers, the various safeguards contained in the Policy, and in the NDIS scheme as a whole, on the potential use of such restrictive practices, render the imposition of conditions unnecessary in this case. These safeguards include the requirement that restrictive practices be used only within the structure of a BSP, which is prepared by a qualified practitioner, who must take steps to reduce and eliminate the need for the use of restrictive practices; the requirement that the BSP is subject to regular reviews; and the requirement that the BSP and any use of restrictive practices is subject to the oversight of the Commission. Furthermore, under the Policy, the authorisation of a restrictive practice requires the approval of an Authorisation Panel, which provides a further layer of scrutiny to the use of such practices.
In addition, guardians appointed under the GA Act are subject to the duty to act according to their opinion of the best interests of the represented person.[105] Of particular relevance in the present context is that that duty includes a duty to act, as far as possible, in such a way as to protect the represented person from neglect, abuse or exploitation.[106]
[105] GA Act s 51(1).
[106] GA Act s 51(2)(f).
Finally, the appointment of TS and DS as joint guardians adds an additional layer of protection in respect of the use of restrictive practices, in that unless both of them consent to the use of restrictive practices in particular circumstances, the restrictive practice in question will not be able to be used.
In our view, it is sufficient that the guardianship order made by the Tribunal, in so far as it concerns authority in relation to restrictive practices, confers authority on MS' guardians to decide whether to give or withhold consent to the use of any restrictive practices proposed in any BSP developed for MS, in compliance with the requirements of the RP Rules, from time to time.
(h) The duration of the order
The Tribunal is required to nominate a period of time by which a review of the guardianship order must be made.
The maximum time allowed under the GA Act is five years.
In this case, having regard to the form of the order we propose to make, which will permit MS' guardians to consent to restrictive practices proposed under a BSP from time to time, we do not consider that there is a need to review the order within a shorter time frame than the maximum period for review. However, for the sake of convenience, we will align the review of the guardianship order with the review of the existing administration order, which review is required by 3 April 2024. If the Tribunal's consideration of MS' situation is required at any time sooner than that, an application for review may be made.
Concluding observations
The increased scrutiny of the need for, and use of, restrictive practices, and the requirement for consent to be given to the adoption of such practices, especially in relation to persons who do not have the capacity to give informed consent themselves, is a welcome development.
However, in the case of an NDIS recipient who does not have the capacity to consent to the use of restrictive practices, the only mechanism by which that consent may be given will, in many cases, be by the appointment of a guardian under the GA Act, even if the NDIS recipient concerned does not otherwise need a guardian. The requirement that consent be given by a guardian is likely to have the consequence that more NDIS recipients will need to have guardians appointed under the GA Act, in order to receive services under the NDIS scheme. That result exposes a tension between the realities of the NDIS scheme, and one of the key principles of the GA Act, which is that a guardianship order should not be made if the needs of a person (that is, the NDIS recipient) can be met by other means less restrictive of their freedom of decision and action.[107]
[107] GA Act s 4(4).
The likelihood that more NDIS recipients will need to apply for guardianship orders, or for the amendment of guardianship orders, to expressly permit a guardian to consent to the use of restrictive practices, also has implications for the workload of the Tribunal, and for the Office of the Public Advocate (because the Public Advocate is frequently appointed as a guardian when no other suitable appointee is available, and because the Public Advocate performs an important role in undertaking investigations concerned with the potential appointment of a guardian). The implications of that increased workload must be closely monitored, and sufficient resources provided to ensure that the Tribunal, and the Public Advocate, are able to carry out their work in a timely and effective fashion, in the best interests of persons with disabilities who are assisted by the NDIS Scheme.
Orders
We therefore make the following orders:
1.The Tribunal declares that the represented person, [MS],
(a)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; and
(iii) in need of oversight, care or control in the interests of his own health and safety and for the protection of others; and
(b)is in need of a guardian.
2.[TS] and [DS] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide the services to which the represented person is to have access;
(c)subject to Part 5 Division 3 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
3.This order is to be reviewed by 3 April 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard25 NOVEMBER 2020