NLX (Guardianship)
[2020] TASGAB 21
•12 June 2020
CITATION: | NLX (Guardianship) [2020] TASGAB 21 |
HEARING DATE(S): | 12 June 2020 |
DATE OF ORDERS: | 12 June 2020 |
DATE OF STATEMENT OF REASONS: | 3 July 2020 |
BOARD: | Mr R. Grueber, (Member) Mr S. Nicholson, (Member) Ms A. McKenzie, (Member) |
APPLICATION: | Application for Guardianship |
CATCHWORDS: | Guardianship - whether tracking device is a restrictive intervention within the Disability Services Act 2011 - need - least restrictive |
LEGISLATION CITED: | Guardianship and Administration Act 1995, ss4, 6, 20, 28, 43; Disability Services Act 2011, part 6, ss34, 36(1), 41, 43 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purpose of publication. |
Statement of Reasons
Application
By an Application dated 15 January 2020 Ms Tracey Percival-Ingram applied for a Guardianship Order in respect of NLX (‘The Application’). Ms Percival-Ingram is a service manager with Li-Ve Tasmania, NLX’s residential service provider. The Application proposed that UX, NLX’s brother, be appointed as her guardian.
Hearing
The Application was heard by the Guardianship and Administration Board (‘the Board’) on 12 June 2020.
The following persons appeared at the hearing:
a.Ms Tracey Percival-Ingram (the Applicant);
b.UX (the proposed guardian);
c.Mr Charley Hodgson (the Senior Practitioner); and
d.Mr Anthony Ozols (manager of resident support at Li-Ve Tasmania).
The Board had before it the following documents:
a.Application for Guardianship dated 15 January 2020;
b.Healthcare Professional Report (‘HCPR’) by Dr Keith Miller dated 10 December 2019;
c.Administration Order dated 27 July 2018;
d.Email correspondence between Mr Anthony Ozols and Mr Charley Hodgson dated 26 November 2019; and
e.Emails from Charley Hodgson to the Board dated 17 March 2020 and 20 March 2020.
Legislation
Under section 20 of the Guardianship and Administration Act 1995 (‘the Act’) the Board may make an order appointing a full or limited guardian in respect of NLX if it is satisfied that:
a) She is a person with a disability; and
b) She is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his personal circumstances; and
c) She is need of a guardian.
In determining whether or not an order should be made section 20 of the Act requires that:
a) The Board consider whether the needs of NLX could be met by other means less restrictive of her freedom of decision and action; and
b) The Board to be satisfied that an order would be in NLX’s best interests; and
c) The Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of NLX, and if an order is made appointing a limited guardian the order must be the least restrictive to NLX’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principles in section 6 of the Act in respect to the performance of a function under the Act such that:
a) The best interests of NLX be promoted; and
b) The wishes of NLX are, if possible, carried into effect.
Background
The Application originally came before the Board on 20 February 2020. On that occasion, before any evidence was adduced, the Board raised the question of whether the Application involved a restrictive intervention in respect to NLX under Part 6 of the Disability Services Act 2011. The hearing was adjourned.
Having obtained the advice of Mr Charley Hodgson, the Senior Practitioner appointed under section 29 of the Disability Services Act, the Applicant proceeded with the Application without making any application under that Act.
Evidence
NLX turned 52 on the day of the hearing. She lives at Oakdale Lodge, a supported residential facility run by Li-Ve Tasmania. NLX has Down Syndrome and early onset dementia.
The HCPR by NLX’s general practitioner, Dr Keith Miller, dated 10 December 2019 notes that Dr Miller has known NLX for twenty years. The report says that she has an intellectual disability, being Down Syndrome and increasing signs of dementia. Her condition is deteriorating and her prognosis is poor. He expects that she will experience a steady continuous decline in her intellectual functioning. Dr Miller notes that NLX has deficits by reason of her disability in respect to orientation to person, place or time, expressive communication, receptive communication, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills. He says that she has severely impaired comprehension. She lacks the capacity to make reasonable decisions in respect to accommodation, medical treatment, provision of support services and matters generally.
The proposed guardian is NLX’s brother, UX. UX was appointed as NLX’s administrator on 24 February 2017 and is her person responsible in respect to decisions concerning medical treatment.[1]
[1] Guardianship and Administration Act 1995 (Tas), ss 4, 43.
The Application arose from the provision by Li-Ve Tasmania to NLX of a GPS tracking device. NLX is able to leave the premises of her supported residential accommodation. She has in the past been able to access the community independently. By reason of her early onset dementia she is unable to now do so safely because she does not follow road safety rules and becomes easily disoriented and confused. Li-Ve Tasmania has implemented a protocol for NLX’s safety which involves a disability support worker checking on her whereabouts every fifteen minutes. If she cannot be located then staff can log into an app to locate her using the GPS tracking device.
The tracking device is in the form of a watch. NLX is used to wearing a watch and has accepted the device as a watch. She can remove it, and in fact does remove it when she wants to. She does not understand its tracking function. It does not make any sound or vibration associated with the GPS facility and has the appearance and function of a normal watch.
If NLX leaves the premises and is located by staff using the tracking device they will assist her on her journey or to return to the facility in accordance with NLX’s wishes. For example, if she had left in order to visit a nearby shop staff would accompany her. If she did not have a purpose for the journey, or it was not appropriate for her to be outside the facility, for example by reason of her dress, she will invariably accompany staff back to the facility if asked to do so.
The device does not prevent NLX from leaving the facility. It is not used in association with any form of coercion. It essentially forms the same purpose as visual surveillance of NLX.
The Senior Practitioner, Mr Hodgson, told the Board that he did not consider that the use of the device constituted a restrictive practice because it did not control NLX’s behaviour or limit her movement. Li-Ve Tasmania respond to and comply with her wishes.
The need identified by the Applicant is to provide a substitute decision maker to consent to the use of the device, which the Board notes, is already being used. No ongoing or subsequent decisions were identified. In particular, no powers of the type contained within section 28 of the Act were sought.[2] Mr Ozols told the Board that NLX would be supported in going wherever she wanted to go, and that she will always return to the facility. That might change as NLX’s condition deteriorates but currently there is no requirement to take any action against her will.
Disability Services Act 2011
[2] Section 28 contains powers to enforce guardianship orders.
The question arises as to whether the use of the surveillance device amounts to a restrictive intervention under the Disability Services Act 2011 (‘the DS Act’).
Section 4 of the DS Act defines a restrictive intervention as ‘any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person’ subject to certain exclusions that do not apply in NLX’s case.
Section 36(1) of the DS Act provides that a disability service provider must ensure that a restrictive intervention is not carried out in respect to a person with a disability who is under the care of that provider unless the restrictive intervention is approved under the DS Act. The Board may approve restrictive interventions under section 43 pursuant to an application made under section 41 by a disability services provider. The Board may approve a restrictive intervention which is an environmental restriction or a restrictive intervention which is a personal restriction. Section 34 defines an environmental restriction as a restrictive intervention that ‘consists of the modification of an object, or the environment of the person, so as to enable the behavioural control of the person’. Personal restriction is defined as ‘consisting wholly or partially of a physical contact with the person so as to enable the behavioural control of the person or the taking of an action that restricts the ability of movement of the person’.
The tracking device does not alter NLX’s environment. It does not involve physical contact to enable behavioural control. The provision of the device does not in itself restrict her liberty of movement. NLX is not prevented from leaving the facility by the device, nor is her freedom to go wherever she may wish restricted by the device, or by the provider.
It may be that a surveillance device is so closely associated with restriction on movement or coercion that it forms part of a restrictive practice, but in NLX’s circumstances the Board agrees with the Senior Practitioner that the use of the device does not constitute a restrictive practice within the meaning of the DS Act.
Should a Guardianship Order be made?
It is apparent from Dr Miller’s report that NLX is a person with a disability as provided in section 20(1)(a) of the Act. It is also apparent that she is, by reason of that disability, unable to make reasonable judgments in respect to matters relating to her personal circumstances, as per section 20(1)(b). The issue for the Board is whether there was a need for a guardian as required by section 20(1)(c). In considering this section 20(2) requires that the Board consider whether the need could be met by other means less restrictive of NLX’s freedom of decision and action than an order.
Although NLX does not apparently understand the nature of the GPS facility of the device, she is happy to wear it as a watch. She does in fact so use it. She can remove it at any time she wishes to. The device is not used to monitor her location except when she cannot otherwise be located. When the device is used to locate her she is not the subject of any coercion or restriction and her wishes are facilitated and supported by the provider. Provision of the device to NLX and its operation does not involve any constraint or compulsion or require substituted decision making. That might change as NLX’s condition deteriorates, however, the Board does not see any need at this time for the appointment of a guardian to consent to the use of the device.
Order
The Board orders that the Application is dismissed.
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