QYT

[2021] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QYT [2021] NSWCATGD 8

Hearing dates:

28 May 2021

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

1. A guardianship order is made for QYT.

2. RZT of [Address removed for publication.] is appointed as the guardian.

3. OBC is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 28 May 2021.

5. This is a limited guardianship order giving the guardian custody of QYT to the extent necessary to carry out the functions below.

FUNCTIONS: RZT

6. RZT has the following functions:

a) Accommodation

To decide where QYT may reside.

b) Health care

To decide what health care QYT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QYT.

e) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence QYT’s behaviour:

1. Chemical restraint

2. Environmental restraint

3. Mechanical restraint

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence QYT’s behaviour:

(i) as a last resort to prevent QYT harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon QYT, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – consideration of what order should be made – use of restrictive practices – subject person an inpatient at a hospital - subject person not a participant in the NDIS – subject person not a resident or recipient of aged care services – subject person receives care via Lifetime Care and Support scheme operated by iCare (Insurance and Care NSW) – independent restrictive practices policy – use of chemical, environmental and mechanical restraints – appointment of guardians to reflect wishes expressed in enduring guardianship appointment.

Legislation Cited:

Aged Care Principles 2014 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW), s 36

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

QYT (the person)
MAC (applicant)
OBC(enduring guardian)
Public Guardian
RZT (spouse and enduring guardian)

Representation:

Nil

File Number(s):

NCAT 2021/00126228

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

Background

1. QYT is a 70-year-old married man who sustained a traumatic brain injury in an accident on 3 September 2020. QYT is currently an inpatient at a private hospital having been transferred there in November 2020 from a public hospital.

2. Prior to his accident, QYT lived in East Sydney with his wife, RZT. They have four children; OBC, Ms Z, Ms Y who live in Sydney, and Mr X who has been living in Germany. As a consequence of the injuries he sustained in the accident, QYT has been accepted as a client of the Lifetime Care and Support Scheme operated by Insurance and Care NSW (icare).

3. On 23 April 2018, QYT appointed RZT and OBC as his enduring guardians to act jointly and severally.

4. On 6 May 2021 the Tribunal received an application for a guardianship order to be made for QYT from the private hospital social worker, MAC. She asks for a guardianship order to be made which allows for the guardian to make decisions about the use of a number of restrictive practices which are anticipated to be required when QYT is discharged from hospital.

5. These Reasons for Decision arise from the hearing of this application.

The hearing

6. The hearing was held by videoconference and telephone and the Tribunal spoke with QYT, RZT, OBC, MAC, Ms Z, Ms Y, Dr W, Registrar, and Mr V, Clinical Neuropsychologist.

Principles guiding the Tribunal

7. The Tribunal is guided in its process and the decisions it makes by the “guiding principle” in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) and the General principles contained in s 4 of the Guardianship Act 1987 (NSW) (“the Act”).

8. The Tribunal must seek to give effect the “guiding principle” when exercising any power given in the Act or procedural rules, or interpreting the Act or procedural rules. The guiding principle is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Parties to proceedings and legal practitioners or others representing parties in proceedings are under a duty to cooperate with the Tribunal to give effect with the guiding principle.

9. The General principles in the Act provide that it is the duty of “everyone exercising functions under the Act with respect to persons who have disabilities” to observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration;

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible;

3. such persons should be encouraged, as far as possible, to live a normal life in the community;

4. the views of such persons in relation to the exercise of those functions should be taken into consideration;

5. the importance of preservice the family relationships and the cultural and linguistic environments of such persons should be recognised;

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their person, domestic and financial affairs;

7. such persons should be protected from neglect, abuse and exploitation;

8. the community should be encouraged to apply and promote these principles.

What did the Tribunal have to decide?

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

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

• 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 QYT someone for whom the Tribunal could make a guardianship order?

11. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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).

12. The Tribunal considered a number of documents relevant to this question; a letter dated 28 April 2021 from Dr W, Rehabilitation Registrar for Dr U of the private hospital; Positive Behaviour Support Plan dated 27 April 2021 prepared by Mr V, Senior Neuropsychologist/Positive Behaviour Support Practitioner, Brain Injury Unit at the private hospital and Social Work Report dated 5 May 2021 from MAC. Taken together these provide consistent information that QYT sustained multiple traumas, including a severe traumatic brain injury, on 3 September 2020 when he was hit by a car as a pedestrian. He was treated at the public hospital and transferred to the private hospital, where he has been treated in the Brain Injury Unit since 24 November 2020. In addition to medical and nursing care, he participates in occupational therapy, physiotherapy, speech therapy, recreational therapy, social work, clinical psychology, neuropsychology, music therapy and behaviour support.

13. Based on this evidence, despite intensive therapy and rehabilitation, QYT continues to exhibit significant cognitive deficits from the brain injury, as well as a suspected mood disorder. He exhibits confusion, disorientation, confabulatory output, impulsivity, poor recall, and poor insight into his limitations. He remains in post-traumatic amnesia. He also demonstrates fluctuating behaviour, with periods of relative calm, compliance and engagement, as well as episodes of agitation, distress as well as verbal and physical aggression. On occasion he poses a risk to himself and others because of the impact of his brain injury and has caused physical injury to staff during his admission to the private hospital.

14. QYT remains dependent on 24/7 care to minimise risk of falls, attend to self- care and engage in daily activities. He is unable to make informed decisions for himself and requires substitute decision-making.

15. At the hearing Mr V confirmed that QYT’s ongoing memory impairment/recall and confabulation impacts on his insight and decision making. In his view QYT is not able to make important decisions on his own behalf. Dr W said that MR imaging of QYT’s brain shows diffuse changes in a number of areas, caused by the accident, which shows damage in parts of his brain which are important in decision making. He said that QYT’s ability to evaluate information is very variable as is his ability to manage his behaviour, both of which impact on his decision-making capacity regarding treatment.

16. The other hearing participants, including QYT confirmed their agreement with these views. QYT spoke confidently to the Tribunal, and was clearly accustomed to taking command of situations and having his views acknowledged. However sadly, his presentation was consistent with the evidence regarding his ongoing cognitive impairment, clearly demonstrating a lack of insight and memory.

17. The Tribunal is satisfied that QYT is a person who, because of a disability is incapable of managing his person, and this prevents him from making important life decisions. He is a person for whom the Tribunal could make a guardianship order if necessary.

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

18. 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;

2. the person’s spouse;

3. the person’s carer; and

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

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.

19. 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).

20. As noted above, QYT appointed his wife and daughter jointly and severally as his enduring guardians on 23 April 2018. This instrument authorises them to make decisions about where he lives, what health care he receives, what personal services he should receive as well as medical and dental treatment. The evidence is that they have been successfully and conscientiously making decisions for QYT to date about these matters.

21. However this application has been made because there is said to be a need for a guardian to authorise the use of restrictive practices, in accordance with the behaviour support plan. An enduring guardianship appointment is suspended in full whilst a guardianship order is in effect.

22. The Tribunal heard that it is hoped that QYT will be discharged from hospital in a few months. The plan is that he will return to live in a privately owned apartment with 24-hour care, funded by LTCS. His wife and children and their families are very actively involved in his care and support and will continue to be when he leaves hospital. However it is anticipated that the workers supporting him when he leaves hospital may need the option of using “restrictive practices” as needed, to keep him and others safe.

23. The introduction of the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguards Commission, has led to greater regulation of the use of practices by service providers funded under the NDIS which restrict the rights, including the freedom of action of participants in the NDIS. Such practices are called “restrictive practices” and are divided into a number of categories of restraint environmental, chemical, mechanical, physical and seclusion. Previous decisions made by this Tribunal have determined that where the person receiving the service is not able to consent on their own behalf to the use of a restrictive practice, consent must be obtained from an appropriately authorised guardian. The Aged Care sector has a similar approach, contained in the Aged Care Principles 2014 (Cth), with classification of restrictive practices of “chemical restraint” and “physical restraint”. This applies in relation to people who are residents in residential aged care as a well as those receiving funded aged care services in the community.

24. QYT is not a client of the NDIS, nor does he receive aged care services. Instead his care is provided via the Lifetime Care and Support scheme, and icare has a policy regarding the use of “restrictive practices” for clients of that scheme. [Footnote removed for publication.] The definitions align to those used under the NDIS. For the purposes of this application, the relevant definitions are as follows:

• 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;

• 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;

• environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities.

25. The policy goes on to say (at 8.2) that consent to a restrictive practice must be given by the person themselves, or if that is not possible, then by a properly authorised guardian. It follows that if there is need for consent to the use of restrictive practices for QYT, then given his assessed lack of capacity to consent on his own behalf, he will need an appropriately authorised guardian to provide consent.

26. QYT’s BSP identifies a number of “target behaviours” as follows:   

• high falls risk, secondary to impulsivity, unsteady gait and poor balance;

• verbal and physical aggressive/agitation (i.e. hitting staff, throwing objects, ramming his walking frame into objects/staff, accusatory towards staff);

• refusing care (i.e. assistance when mobilising) and his medication;

• wandering and absconding risk.

27. Based on the BSP, management of these behaviours requires the (last resort) option of using certain restrictive practices as follows:

• Chemical restraints: regular and prn medications to assist in managing his irritability, agitation and anger. Dr W advised these medications are still being rationalised, but at present the medications which would be considered to be chemical restraint are Sodium Valproate 1gr bd, Olanzapine 2.5mg bd, Lorazepam prn up to 2mg daily and Clonazepam bd. There are likely to be changes to these when QYT is discharged from the private hospital.

• Environmental restraints: locked front door at times to prevent him from leaving and potentially becoming lost or hurt because of poor road safety; supervision at all times;

• Mechanical restraints: use of the “child safety lock” when travelling in the car to prevent him leaving the car whilst driving; buckle belt on wheelchair to be used when in use, though it is suggested this is not a restrictive practice because QYT is able to undo the belt if he chooses.

28. Mr V said that the BSP will be reviewed again before QYT leaves hospital. There has been a noticeable improvement in QYT’s behaviour in the last four to six weeks with a reduction in the outbursts and it is hoped that this will continue.

29. QYT said that he didn’t think that he needed any restriction on his movement or freedoms – if he wants to go to the shop and fill a prescription, he should be able to do this. It was evident to the Tribunal from his presentation that QYT did not have a reliable understanding of his need for care and supervision. His family all agreed there may be a need for certain restrictive practices to be used, if needed as a last resort, once he leaves hospital.

30. The Tribunal noted that if a guardianship order is made the enduring guardianship appointment is suspended in full. Given the period of transition QYT is in at the present time, it is likely that there will continue to be a need for someone to make decisions regarding his accommodation, services, health care and medical/dental treatment (the matters included in the enduring guardianship appointment). QYT previously gave this authority under the enduring guardianship appointment, to his wife and daughter, and in the Tribunal’s view it is consistent with his welfare and interests and reflects his wishes, to replicate this in the guardianship order. The other hearing participants agreed that it was necessary and in QYT’s interests to include these functions in a guardianship order.

31. The Tribunal asked about the possible need to include authority for the guardian to consent to medical/dental treatment overriding QYT’s objection, and also the need to authorise others, such as the police or ambulance to take QYT to a place determined by the guardian, keep him there or return him there. The Tribunal was told that this was not needed at present – he has been reluctant to accept medical treatment (medications and examinations) but this is improving and Dr W said that it is anticipated that any reluctance will be able to be managed with behavioural strategies. Although QYT is keen to leave hospital and “packs his bags” most days, there was no indication that a guardian needed to be able to call on others to take, return or keep him at the place nominated by the guardian, in addition to the ability to consent to the environmental restraint of locked doors and 24-hour supervision.

32. In terms of the mandatory considerations in s 14(2) of the Act, QYT’s views, RZT’s views have been set out above, as well as the consideration of whether services can be provided without a guardianship order. The Tribunal noted that a guardianship order in the terms referred to above was supportive of QYT’s family relationships because it recognises the roles he had previously allocated in the enduring guardianship appointment. There was no evidence that a guardianship order in these terms would impact in any way on any cultural or linguistic environment QYT identifies with.

28. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made and the guardian given authority to make decisions for QYT regarding his accommodation, services, health care, the use of restrictive practices (chemical, environmental and mechanical restraints), and to consent to his medical and dental treatment.

Who should be the guardian?

34. There is a proposal that RZT and OBC be appointed guardians for QYT. They are appointed as his enduring guardians and are able to make decisions for him jointly and separately and this was what was proposed to the Tribunal would be the best arrangement for QYT. The Tribunal explained that the Act does not provide the option of a joint and several appointment but that guardians can be appointed jointly, with separate functions or as guardian and alternate guardian. After this was explained the general view was that it would be appropriate to appoint RZT as guardian and OBC as alternate guardian. The family are all very close in any event, and decisions are generally made by them all in collaboration.

35. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. They must:

• have a personality generally compatible with the personality of the person under guardianship;

• have no undue conflict of interest (particularly financial) with those of the person; and

• be able and willing to exercise the functions of the order.

36. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act.

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

38. QYT chose his wife and daughter (OBC) as his enduring guardians at a time when he was well placed to make important decisions for himself. He told the Tribunal that he still wanted them to be the people to make decisions for him if necessary, although he found it difficult to understand why that might be necessary.

39. RZT and OBC indicated their willingness to be appointed and their commitment to making well informed and well considered decisions on his behalf was apparent. MAC said that the treating team support the appointment of RZT and OBC as guardians. Their actions, involvement and decisions to date demonstrate they are well able to undertake the role.

40. Ms Y and Ms Z also agreed with the proposal that their mother and sister be appointed as guardians for their father.

41. On the basis of this evidence, the Tribunal was satisfied that RZT and OBC meet the requirements to be appointed as the guardian and alternate guardian for QYT respectively.

How long should the order last?

42. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

43. QYT asked for the order to last nine months but had no particular reasons for this. Other participants supported an order being made for 12 months because of the very significant period of transition ahead. It is not known yet exactly when QYT may be discharged from hospital although it was evident it will be a few more months yet. His return to live more independently may present some challenges whilst new routines are established. The Tribunal decided to make an order for 12 months because this allows a reasonable period for decisions to be made during the anticipated period of transition. The Tribunal is able to review the order on request if necessary within this period.

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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: 15 June 2021