OZQ

[2020] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OZQ [2020] NSWCATGD 40

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Guardianship Division

Before:

S G McCarthy, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
A D Wannan, General Member (Community)

Decision:

The application for guardianship is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person has dementia and cognitive deficits – subject person is immobile - use of bed rails in aged care – whether use of bed rails constitutes “physical restraint” – Pt 4A of the Quality of Care Principles 2014 (Cth) - bed rails used to prevent subject person from falling out of bed and suffering injury – subject person at higher risk of infection and delirium – use of bed rails does not restrict subject person’s movement as subject person is immobile – use of bed rails not a “restrictive practice” – no need for a guardianship order – application dismissed.

Legislation Cited:

Aged Care Act 1997 (Cth)

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

Quality of Care Principles 2014 (Cth), Pt 4A, Sch 2, ss 4, 15F, 15G

Cases Cited:

IF v IG [2004] NSWADTAP 3

JFL [2020] NSWCATGD 32

SZH [2020] NSWCATGD 28

VZM [2020] NSWCATGD 25

Texts Cited:

Aged Care Quality and Safety Commission, Regulatory Bulletin, Regulation of Physical and Chemical Restraint, Issue No. 2019-8.1 (11 December 2019)

Category:

Principal judgment

Parties:

001: Guardianship Application

OZQ (the person)
DAL (applicant, enduring guardian)
YBQ (enduring guardian, spouse)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00306068

Publication restriction:

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

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship in relation to OZQ made by DAL.

Background

2. OZQ is aged 94 years and is of Greek background. He resides at an aged care facility in Southwest Sydney. OZQ’s family includes his wife YBQ and DAL, daughter. DAL made an application for guardianship concerning OZQ regarding the use of bed rails for OZQ in the care facility.

3. On 4 April 2011, OZQ made an enduring guardianship appointment appointing YBQ and DAL as his guardians, both jointly and severally.

The hearing

4. 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.]

Does DAL have standing to bring the application?

5. A person has standing to bring an application if he or she is:

1. the person who is the subject of the application;

2. the Public Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

6. The Tribunal found that DAL has standing to make the application for a guardianship order because she has a genuine concern for the welfare of OZQ.

Settlement

7. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement.

What did the Tribunal have to decide?

8. The questions which had to be decided by the Tribunal were:

• Is OZQ someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is OZQ someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

9. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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”: the Act, s 3(1). 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: the Act, s 3(2).

10. OZQ has been diagnosed with dementia. Ms Z, Assistant Director of Nursing at the care facility, stated in a report dated 12 October 2020 that OZQ is no longer mobile and his ability to speak and communicate is minimal. OZQ has been diagnosed with dementia with BPSD (behavioural and psychological symptoms of dementia) and cognitive deficits and he is no longer able to make decisions.

11. Mr Y, Deputy Director at the care facility, stated at the hearing that OZQ is predominantly non-verbal and is not able to make informed important lifestyle decisions.

12. The Tribunal is satisfied that based on this evidence that OZQ has a disability, being dementia and cognitive deficits, which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

13. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a 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.

14. 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 Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

15. OZQ is predominantly non-verbal. OZQ was not able to participate in the hearing because of his significant cognitive impairment. The Tribunal decided to proceed with the hearing in the absence of OZQ on the basis that he was not able to understand the Tribunal proceedings because of his cognitive deficits.

16. DAL stated that YBQ is frail and would have difficulty participating in the hearing. DAL stated that YBQ agrees with her views regarding the use of bed rails for OZQ. Mr Y agreed with DAL’s submission that YBQ’s views regarding the use of bed rails for OZQ are aligned with the views of DAL.

17. DAL stated that OZQ has been residing at the care facility for the past four years. The bed rails have been used on OZQ’s bed for her father’s safety so that he does not roll out of bed accidentally and suffer injury and harm. DAL stated that OZQ has a catheter and is at higher risk of infection and delirium which can impact on his health condition and his physical reactions. She stated that the bed rails have not restricted his freedom of movement. DAL stated that the application for guardianship was made as the care facility have removed the bed rails from OZQ’s bed because it is considered to be a restrictive practice requiring a guardian to be appointed with the specific decision-making function of restrictive practice. She did not consider the use of the bed rails to be a restrictive practice for her father.

18. Mr Y stated that OZQ is residing in a two-person room at the facility. A low positioned bed is being used for OZQ. When the bed rails were being used and in position they were raised around 30cm above the mattress line. When OZQ is transferring from his bed the care facility staff use a pat slide to assist him. Previously a pelican belt was used. OZQ’s last fall was in 2018. Mr Y stated that OZQ is not able to reposition himself in bed or get out of bed by himself. He stated that if OZQ became agitated because of a delirium he could move his arms about and if the bed rails are in position it could place him at risk of bruising and skin tears if his arms came into contact with the rails. When questioned about this by DAL Mr Y did concede that there was padding in place around the rails to minimise the risk. OZQ does not have any concept of bed rails and their use.

19. A Bed Rail Utilisation Statement dated 27 October 2020 was completed by the care facility. This document stated that OZQ is a good candidate to remove the bed rails because he is immobile and fully dependent on staff for mobility. OZQ does not make any attempt to exit the bed or slide out of the bed. The assessment concluded that bed rails were not recommended for OZQ and they were removed on 27 October 2020 with no adverse results. The care facility stated that the use of bed rails can be a restrictive practice which is reviewed by the Aged Care Quality and Safety Commission. A restrictive practice is heavily regulated and a formal guardian appointed by the Tribunal is required to provide substitute consent for the use of a physical restraint if appropriate.

20. The Tribunal was required to consider whether the use of bed rails in the particular circumstances for OZQ is considered to be a restrictive practice. Under Pt 4A of the Quality of Care Principles 2014 (Cth) (“the Principles”) made pursuant to the Aged Care Act 1997 (Cth) restrictive practices require the consent of an appointed guardian (referred to in the Principles as ‘the consumer’s representative’). ‘Restraint’ is defined in s 4 of the Principles as meaning “any practice, device or action that interferes with a consumer’s ability to make a decision or restricts a consumer’s free movement”. ‘Physical restraint’ is defined in the Principles as meaning “any restraint other than (a) a chemical restraint or (b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed medical disorder, a physical illness or a physical condition”. The Tribunal in determining applications for guardianship has considered practices of chemical restraint and physical restraint as being a restrictive practice. Aged care facilities are required to report on a regular basis to the Aged Care Quality and Safety Commission concerning the use of physical restraints and chemical restraints and whether the resident has an appointed ‘consumer representative’ being a guardian. Aged care facilities are guided by the Regulatory Bulletin issued by the Aged Care Quality and Safety Commission titled “Regulation of Physical and Chemical Restraint” (Issue No. 2019-8.1, Issue Date 11 December 2019). The Principles and the Aged Care Act are not binding on the NSW Civil and Administrative Tribunal in deciding whether or not to appoint a guardian with the decision-making function of restrictive practices and restraints (see VZM [2020] NSWCATGD 25). Nevertheless, the Principles including ss 15F and 15G and the Aged Care Quality Standards set out in Sch 2 of the Principles together with the Aged Care Act impact on the care, welfare and interests of OZQ. The welfare and interests of OZQ are a paramount consideration for the Tribunal, together with the other s 4 principles of the Act including that the freedom of decision and freedom of action should be restricted as little as possible and the importance of preserving family relationships. The Tribunal has previously provided comprehensive reasons for decisions regarding the interaction of the Principles, Aged Care Act, the Act and the role of the NSW Civil and Administrative Tribunal Guardianship Division in SZH [2020] NSWCATGD 28, VZM [2020] NSWCATGD 25 and JFL [2020] NSWCATGD 32.

21. DAL made the application for guardianship regarding the continued use of bed rails for OZQ at the care facility. There are no proposed changes to OZQ’s accommodation or any proposed changes to his access to support services at the care facility. OZQ sees a GP and has access to appropriate health care. He is a permanent resident at the care facility and the facility meets his care needs. OZQ has made an enduring guardianship appointment on 4 April 2011, appointing DAL and YBQ as his guardians jointly and severally. They are authorised to make important lifestyle decisions concerning OZQ as he is not able to make informed important lifestyle decisions. The making of a guardianship order by the Tribunal suspends the operation of the enduring guardianship appointment during the term of the order.

22. The bed rails on OZQ’s bed were removed on 27 October 2020 by the care facility staff and there have not been any adverse events or incidents concerning OZQ’s safety in bed since then. DAL and YBQ seek that the bed rails be reintroduced for OZQ. The use of the bed rails when in position on OZQ’s bed does not restrict his freedom of movement as he is not mobile in bed. He is not able to reposition his head while lying on the bed. OZQ does not seek to exit the bed and does not attempt to get out of the bed. The use of the bed rails in OZQ’s particular circumstances do not restrict his freedom of movement in bed or in attempting to exit the bed as OZQ is not able to physically undertake such actions. Therefore, the Tribunal decided that the use of the bed rails in OZQ’s specific circumstances is not a restrictive practice as defined by the Principles as it does not restrict his freedom of movement. The utility of the use of bed rails in OZQ’s particular circumstances should be discussed between YBQ, DAL and Mr Y and the care facility. There is no need for a guardianship order as the use of the bed rails is not considered by the Tribunal to be a restrictive practice for OZQ’s specific circumstances. The Tribunal decided to dismiss the application for guardianship.

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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: 05 March 2021