NHD

[2018] NSWCATGD 41

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NHD [2018] NSWCATGD 41

Hearing dates:

26 October 2018

Date of orders:

26 October 2018

Decision date:

26 October 2018

Jurisdiction:

Guardianship Division

Before:

B L Hughes, Senior Member (Legal),
L Houlahan, Professional Member (Community)

Decision:

The guardianship order for NHD made on 2 October 2015 has been reviewed. The order now is as follows:

 

1.BAH of [Address removed for publication] is appointed as the guardian.

 

2.This is a continuing guardianship order for a period
of three years from 26 October 2018.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Health care

 

To decide what health care NHD may receive.

 

b) Medical/Dental consent

 

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

 

c) Services

 

To make decisions about services to be provided to NHD.

 

d) Restrictive Practices

 

To make decisions about the following restrictive practices:

 

(i) restricted access to the fridge

 

(ii) restricted access to the second sitting room, back
yard and front yard

 

(iii) locked front door and front gate

 

(iv) administration of PRN medications

 

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian may only consent to:

 

i) Restriction of NHD’s freedom of movement;

 

ii) The administration of psychotropic medication; or

 

iii) Other restrictive practices

 to address challenging behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program.

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – functions of guardian – appointment of private guardian – order renewed and varied

 

RESTRICTIVE PRACTICES – chemical restraint – environmental restraint – whether practice is a restrictive practice

  WORDS AND PHRASES – seat belt buckle cover – car door safety locks

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

007: Review of Guardianship Order

  NHD (the person)
BAH (appointed guardian, joined party)
PZI (appointed guardian, joined party)

Representation:

Nil

File Number(s):

NCAT 2006/00370503

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. NHD is a 47-year-old woman who lives in a group home managed by a disability service provider in Southwest Sydney with two other residents. She has a number of siblings, including BAH. Her father is PZI.

2. Without intending disrespect, the Tribunal will refer to NHD and her sister, BAH, by their first names. BAH is NHD’s financial manager.

3. NHD has been subject to guardianship orders since October 2006. Most recently, on 2 October 2015, the Tribunal renewed the guardianship order for a period of three years. BAH was appointed as guardian, and PZI as alternative guardian, with authority to make decisions for her about her health care, medical and dental treatment, access to services and restrictive practices. The restrictive practices at that time were specifically the restriction of her movement, her access to food and the use of restraint while travelling

4. This is the end of term statutory review of the guardianship order made on 2 October 2015.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

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

7. The questions to be considered by the Tribunal are:

• Is NHD someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is NHD someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

8. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: s 3(1) of the Guardianship Act. A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Guardianship Act.

9. When the previous order was made, the Tribunal found that as a result of intellectual disability and bipolar disorder, NHD was unable to make important life decisions. There was no new evidence before the Tribunal in relation to this issue. NHD attended the hearing but did not participate in a meaningful way.

10. The Tribunal is satisfied that NHD continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

11. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

12. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3) which provides:

General principles

4 General Principles

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

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

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

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

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

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

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

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

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

13. NHD attended the hearing but was unable to provide her views due to the nature of her disabilities.

14. BAH provided the Tribunal with a private guardian statement dated 2 August 2018 and with a list of NHD’s medications, medical practitioners, and service providers. The Tribunal was provided with a Behaviour Intervention and Support Plan from March 2017.

15. BAH said that there is currently a vacancy in the group home and that decisions may be needed in the future about whether or not her current accommodation is appropriate. However, during the hearing it transpired that there is no imminent plan to move NHD, her accommodation is permanent and appropriate, and it is likely that if a move is necessary it could be arranged informally.

16. BAH and her father attend medical appointments with NHD and have made decisions about NHD’s psychotropic medications and dental treatment. Some of NHD’s medications are major medications for which a guardian or a person responsible is required to provide consent due to NHD’s inability to provide her own consent to treatment. NHD has a number of health professionals engaged in her care including occupational therapists, the obesity clinic and podiatrists. The Tribunal accepted that there was an ongoing need for a guardian to make decisions in these areas, particularly as PZI expressed his strong views that he wished to be involved and engaged in decision making around NHD’s medical treatment and health care. The Tribunal accepted that BAH consults with her father and then makes decisions in NHD’s best interests based upon the medical advice she receives. The Tribunal considered that it was important for a single decision-maker to be appointed in light of the difficulties PZI has in communicating with medical practitioners and his strong views about NHD’s medications. PRN medications are still used to manage NHD’s behaviour when she is agitated in accordance with a behaviour support plan.

17. BAH said that NHD is currently suspended from her day program due to an assault. The day program will not agree to NHD returning until a new behaviour support plan is in place. As a result of her suspension, support workers from the group home are caring for NHD during the day which means that she is spending her National Disability Insurance Scheme (NDIS) core support funding at a higher rate than would be expected. There remains a need for decisions to be made about the development of a behaviour support plan and about the services that NHD should receive, including day programs.

18. PZI told the Tribunal that he had serious concerns about NHD’s medications and was glad that Lamotrigine had been removed from her medication chart. He said that he sees her most days and he was disappointed that NHD has had to change her living arrangements due to another resident moving in. NHD has lost the bedroom that she had at the back of the house and now has restricted access to the backyard and the sitting room at the back of the house. He complained that the front door and front gate are locked which prevents NHD from freely accessing the front yard.

19. Mr Hassan said that NHD’s access to the back sitting room and back yard were restricted to ensure that she did not come into contact with her co-resident. He said that the front door and front gate were locked for the safety of residents. The Tribunal discussed the possibility of the front door being left unlocked during the daytime whilst the front gate is locked to enable NHD to have access to the front garden.

20. The fridge in the home is locked to restrict NHD’s access to it. NHD has a tendency to gorge and has major issues with her intake of food. There is another fridge which is not locked and contains healthy options. NHD has been known to take food from the rubbish bin such is her craving for food. She is supported with 1:1 staff and sees a dietician regularly to encourage her to eat healthy choices. As a result of NHD’s restricted access to the fridge she has lost over 30kg which has been very positive for her general health and wellbeing.

21. NHD has a child lock engaged when she travels in vehicles and wears a seatbelt buckle cover when travelling in the group home vehicle. The Tribunal was told that there have been incidents where NHD has tried to open the back door of the car. The use of seat belt buckle covers and practices for the management of non-purposeful risk behaviour (unsafe actions) are specific exceptions to restrictive practice authorisation process.

22. The Tribunal was satisfied on the basis of all this evidence that there remains a need for a guardian to make decisions about NHD’s medical and dental treatment, her health care, the services that she receives and in relation to restrictive practices. Specifically, in respect of NHD’s restricted access to the fridge, backyard and the back sitting room, as well as the locking of the front door and gate and the administration of PRN medications to manage her behaviours.

Who should be appointed as the guardian?

23. The Tribunal has previously decided that BAH meets the requirements of the Guardianship Act and may be appointed as guardian for NHD. Given the difficulties that PZI has faced as alternate guardian and in light of the fact that he is in regular communication with both BAH and NHD, the Tribunal considered that it was in NHD’s best interests that one guardian be appointed. BAH impressed the Tribunal as having a good rapport with her sister and her father and a solid understanding of the decisions to be made by a guardian for NHD. The Tribunal recognises PZI’s devotion to NHD and considered that he would still be involved in the decision-making process even if he were not reappointed as alternate guardian.

24. The Tribunal was satisfied that BAH continues to meet the requirements of the Guardianship Act and re-appointed her as guardian.

How long should the order last?

25. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. The Tribunal decided to make an order for three years.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 February 2019