Re Frieda (Guardianship)
[2022] ACAT 27
•15 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RE FRIEDA (Guardianship) [2022] ACAT 27
GT 150/2021
Catchwords: GUARDIANSHIP – restrictive practices – environmental restraint – whether an attorney under an enduring power of attorney has power to consent to the principal’s environmental restraint in a residential aged care facility – consideration of ‘personal care matter’ and ‘health care matter’, as defined in the Powers of Attorney Act 2006 – consideration of human rights: freedom of movement and right to liberty – declaration that the attorney has power to consent to the principal’s environmental restraint in a residential aged care facility – application for guardianship dismissed
Legislation cited: Aged Care Act 1997 (Cth) s 96.1
Guardianship Act 1987 (NSW) s 33
Guardianship and Management of Property Act 1991 ss 7, 8, 19, 62, 66
Human Rights Act 2004 ss 13, 18, 28, 30, 31
Legislation Act 2001 ss 127, 132
Powers of Attorney Act 2006 ss 7, 8, 11, 12, 13, 36, 37, 89
Senior Practitioner Act 2018 ss 8, 10, 10A
Subordinate
Legislation cited: Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (Cth) s 2
Quality of Care Principles 2014 (Cth) ss 15HA- 15HG, 15FA, 15FB, 15J
Cases cited:Al-Kateb v Godwin [2004] HCA 37
Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54
KBU [2020] NSWCATGD 9
MS [2020] WASAT 146
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Ben [2020] ACAT 82Re CC [2019] NTCAT 13
Re Clara [2019] ACAT 46
Re Evelyn [2021] ACAT 126
Royal Women’s Hospital v Medical Practitioners Board [2006] VSCA 85
NZX [2021] NSWCATGD 16
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15
SZH [2020] NSWCATGD 28
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
TZD [2021] NSWCATGD 14
VZM [2020] NSWCATGD 25
List of
Texts/Papers cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 21 September 2006
Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th edition, 2019)
Independent review of the legislation provisions governing the use of restraint in residential aged care, December 2020
Office of the ACT Public Trustee and Guardian, The Power to Choose. Your guide to completing an enduring power of attorney
Royal Commission into Aged Care Quality and Safety
The Hon, Justice David Mossop, The Constitution of the Australian Capital Territory, (The Federation Press, 2021)
United Nations Convention on the Rights of Persons with Disabilities article 12
Tribunal:Presidential Member G McCarthy
Date of Orders: 15 December 2021
Date of Reasons for Decision: 30 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 150/2021
IN THE MATTER OF FRIEDA
TRIBUNAL:Presidential Member G McCarthy
DATE:15 December 2021
ORDER
The Tribunal orders that:
The application dated 15 October 2021 for the appointment of a guardian is dismissed.
The Tribunal declares:
The enduring power of attorney executed by [Frieda] on 23 December 2015 empowers her attorney to give consent to others restraining [Frieda] from leaving a place.
………………Signed………………..
Presidential Member G McCarthy
REASONS FOR DECISION
Overview and outcomes
By application dated 6 November 2021, a person who I will refer to in these reasons as ‘Jill’[1] applied to be appointed as guardian for her mother who I will refer to in these reasons as ‘Frieda’.[2]
[1] The name Jill bears no resemblance to the applicant’s real name and is used for the purposes of confidentiality.
[2] The name Frieda bears no resemblance to the person’s real name and is used for the purposes of confidentiality.
Jill made her application for appointment as her mother’s guardian under the Guardianship and Management of Property Act 1991 (the GMP Act) even though she holds an appointment as her mother’s attorney under an enduring power of attorney executed by her mother on 23 January 2015 (the EPOA). The EPOA was made under the Powers of Attorney Act 2006 (the POA Act).
Pursuant to the EPOA, Frieda authorised Jill to do, on Frieda’s behalf, anything that Frieda could lawfully do by an attorney in relation to Frieda’s personal care matters and health care matters while she has impaired decision-making capacity.[3]
[3] Frieda also authorised Jill to do, on her behalf, anything that Frieda could lawfully do by an attorney in relation to Frieda’s property matters including her financial matters, although that is not relevant for present purposes.
Frieda will be 90 years of age in March this year. She has been a resident in a residential aged care facility (the RACF) for many years. The RACF is managed by Goodwin Aged Care Services Limited (Goodwin).
Frieda has significant cognitive impairment arising from diagnosed dementia. Jill has been making decisions on Frieda’s behalf regarding her property, personal care and health care for many years pursuant to the powers entrusted to her under the EPOA.
Frieda’s circumstances have not materially changed, which makes it necessary to state the purpose of Jill’s application for appointment as her mother’s guardian.
Jill did not initiate the application. She applied because Goodwin advised her to do so on the grounds that Frieda is accommodated in the Memory Support Unit (MSU) at the RACF to prevent her from wandering from the RACF and becoming lost. At the hearing, Jill explained that Frieda “sometimes has trouble finding her own room and she packs her bags every day so that she can get on the train to meet her mum.”[4] I assume Frieda’s mother has long since passed away.
[4] Transcript of proceedings 25 November 2021, page 29, lines 1-2
For reasons discussed below, Goodwin advised (and I agree) that to accommodate Frieda in the MSU constitutes an environmental restraint, that being a kind of restrictive practice.[5] Goodwin was concerned that Jill’s powers under the EPOA might not empower Jill to give consent for Goodwin to restrain Frieda in the MSU which might (in turn) place doubt upon whether Frieda’s restraint in the MSU is lawful. Accordingly, to remove any doubt, Goodwin advised Jill to apply to be appointed as Frieda’s guardian with express (or specific) power to give consent to Frieda’s environmental restraint.
[5] For a consideration of the meaning of ‘restrictive practices’ and the five recognised different kinds of restrictive practices, see Re Ben [2020] ACAT 82 at [21]-[35] and Re Evelyn [2021] ACAT 126 at [104]-[106].
There is no suggestion of anything inappropriate or untoward regarding Frieda’s care. In an email to the tribunal provided for the purposes of the application, Jill said:
The whole MSU is light, spacious and homelike and there are two doors leading [from the MSU] to a spacious garden which can be accessed by residents at any time during daylight hours. The garden area is fenced so no one can wander off.
Jill continued:
Doors accessing the main foyer are locked by magnet and can only be used by persons who have a swipe card. This is really the only area that residents in the MSU cannot access unless accompanied by a carer or family member to attend a show, movie, Christmas party etc.
I am able to take Mum out whenever I want.
The MSU only has residents with dementia etc. and I have personally witnessed my Mum not remembering where her own room was. If Mum was allowed out on the street she would never find her way back. It would be harrowing for Mum and family and care personnel…
The care of the staff at [the RACF] is exceptional and I can’t thank them enough for treating my Mum with kindness, respect and care.
Jill’s application was among many applications recently made to the tribunal by other attorneys who were in the same or a similar situation and to whom Goodwin had given the same advice. Goodwin’s advice to Jill, and the other attorneys, arose from recent significant changes to Commonwealth legislation regulating the use of environmental restraints and other restrictive practices by approved providers (such as Goodwin) of residential aged care accommodation.
I concluded that the appointment of a guardian is not necessary because the EPOA empowers Jill to give consent to Goodwin restraining Frieda from leaving the RACF, meaning to give consent to Goodwin’s use of an environmental restraint. For this reason, in order to resolve the uncertainty, I made a declaration to that effect[6] and dismissed Jill’s application for guardianship.
[6] Section 62 (1)(e) of the Guardianship and Management of Property Act 1991 empowers the Tribunal to “make a declaration about the interpretation or effect of [an] enduring power of attorney”.
Ms Connolly, who attended the hearing on behalf of the ACT Public Trustee and Guardian (the PTG), agreed with that outcome.[7]
[7] Transcript of proceedings, 25 November 2021, page 22, lines 9-12
I also note that to appoint a guardian, the three criteria set out in sections 7(1)(a), (b) and (c), respectively, of the GMP Act need to be met. The third of those criteria, in section 7(1)(c), states:
7 Appointment and powers of guardians
(1) This section applies if the ACAT is satisfied that—
(a)..; and
(b)..; and
(c)if a guardian is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
Where I was satisfied that the EPOA empowers Jill to give consent to Frieda’s restraint in the RACF, and where there was no other suggested inadequacy with the powers given to Jill under the EPOA, the third criterion was not met. It followed that the application for guardianship needed to be dismissed.
Where the question arising in this case also arises in relation to many other persons residing in aged care accommodation who are also restrained (to varying degrees) from leaving that accommodation, I publish my reasons.
The EPOA and its context
Pursuant to the EPOA, Frieda authorised Jill to exercise the following powers (among others):
personal care matters
I authorise my attorney to do, on my behalf, anything that I can lawfully do by an attorney, in relation to my personal care matters, while I have impaired decision-making capacity.
health care matters
I authorise my attorney to do, [on my behalf], anything that I can lawfully do by an attorney, in relation to my health care matters, while I have impaired decision-making capacity.
In the EPOA, under the grant of these powers, there is a note that states:
Refer to published guidelines in relation to powers under this section.
The ‘published guidelines’ (as best I can ascertain)[8] are the guidelines contained in a document published by the PTG entitled “The Power to Choose. Your guide to completing an enduring power of attorney” (the Guidelines).
[8] I reached this view because Frieda’s EPOA uses the enduring power of attorney approved form AF2017 – 45 made under section 96 of the POA Act. The approved EPOA form, in Note 1, states: “Please refer to the guidelines in ‘The Power to Choose’ published on the Public Trustee and Guardian’s website before completing this form”.
The Guidelines, on pages 4 and 5, state that under section 13 of the POA Act, a principal may appoint an attorney to act on the principal’s behalf in any or all of four areas: property matters, personal care matters, health care matters and medical research matters. The Guidelines then describe each of these four kinds of matters.
‘Personal care matters’ is described to mean:
[A] matter concerning your personal care or welfare, but not a health care matter. Some examples of a personal care matter include: where you live and who you live with; any education or training you get; whether you work and where; and legal matters relating to personal care matters.
The description of ‘personal care matters’ is consistent with the definition of ‘personal care matter’ in section 11 of the POA Act, which states:
11 Meaning of personal care matter
In this Act:
personal care matter, for a principal, means a matter, other than a health care matter, special personal matter, special health care matter or medical research matter relating to the principal’s personal care, including the principal’s welfare.
Examples of personal care matters a power of attorney may deal with
1where the principal lives
2who the principal lives with
3whether the principal works and, if the principal works, where and how the principal works
4what education or training the principal gets
5whether the principal applies for a licence or permit
6the principal’s daily dress and diet
7whether to consent to a forensic examination of the principal
8whether the principal will go on holiday and where
9legal matters relating to the principal’s personal care
NoteSpecial personal matter—see s 36. Special health care matter—see s 37.
The Guidelines describe ‘health care matters’ to mean:
[A] health care matter, other than a special health care matter (discussed at p.17). Some examples of a health care matter include consenting to lawful medical treatment necessary for your well-being; withholding or withdrawal of medical treatment; consenting to treatment for mental illness (other than electroconvulsive therapy or psychiatric surgery); and legal matters relating to health care.
The description of ‘health care matters’ in the Guidelines is consistent with the definition of ‘health care matter’ in section 12 of the POA Act, which states:
12 Meaning of health care matter
In this Act:
health care matter, for a principal, means a matter, other than a special health care matter or medical research matter, relating to the principal’s health care.
Examples of health care matters a power of attorney may deal with
1consenting to lawful medical treatment necessary for the principal’s wellbeing
2donations (other than donations of non-regenerative tissue) under the Transplantation and Anatomy Act 1978 by the principal to someone else
3withholding or withdrawal of medical treatment for the principal
4legal matters relating to the principal’s health care
5consenting to treatment for a mental illness (other than electroconvulsive therapy or psychiatric surgery) necessary for the principal’s wellbeing
NoteSpecial health care matter—see s 37.
Where the EPOA was made pursuant to the POA Act, in my view the definitions of ‘personal care matter’ and ‘health care matter’ in the POA Act should be used for the purpose of construing the ambit of the terms in the EPOA.[9]
The issue
[9] I make the same observation regarding the term ‘property matters’ in the EPOA, where that term is defined in section 10 of the POA Act, although that is not relevant for the purposes of this application.
The question in this case was whether Frieda’s authorisation of Jill under the EPOA to make decisions on Frieda’s behalf regarding personal care matters and/or health care matters empowered Jill to give consent to Goodwin restraining Frieda from leaving the RACF.
Submissions on behalf of Goodwin
Mr Harcourt, solicitor, appeared on behalf of Goodwin at the hearing of the application and later provided detailed written submissions. I record my indebtedness to him for his careful and thorough analysis of the relevant legislation and case law.
Previous Tribunal decisions
Mr Harcourt began by acknowledging my dismissal of an earlier similar application for guardianship in a different proceeding accompanied by my declaration, made under section 62(1)(e) of the GMP Act, that the enduring power of attorney under consideration in that proceeding (which was materially the same as the EPOA under consideration in this proceeding) empowered the attorney to give consent to others (in particular, Goodwin) restraining the principal in a place. Mr Harcourt made clear that Goodwin was not submitting that the outcome in that earlier application was incorrect. He said that Goodwin would be content with the same outcome in response to this application.[10] His submissions were to assist with closer consideration of the issue and to explain Goodwin’s concern about whether that outcome should be preferred. As Mr Harcourt succinctly put it, Goodwin did not wish to find itself “on the wrong end of the stick”[11] of a finding of non-compliance with its statutory obligations regarding the use of a restrictive practice.
[10] Transcript of proceedings, 25 November 2021, page 10, lines 4-31
[11] Transcript of proceedings, 25 November 2021, page 10, lines 13-16
I accept that Goodwin was also concerned for Frieda’s interests, the interests of other residents in a similar position and the interests of Jill (and other attorneys) who may have given their consent to an environmental restraint “in good faith”[12] only later to find that they did not have authority to give it.
[12] Transcript of proceedings, 25 November 2021, page 17, lines 43-45
At hearing, Jill said that she too was content with a declaration of the kind I made in the earlier application, save for some suggestions (which I discuss below) regarding the regulation of Frieda’s restraint.
I appreciated Mr Harcourt’s approach but remained of the view that Frieda’s EPOA empowers Jill to give consent to Goodwin restraining Frieda from leaving the RACF.
Restrictive practices
Mr Harcourt commenced by noting that the use of restrictive practices by an approved provider of aged care services is governed by the Quality of Care Principles 2014 (the Principles) made under section 96.1 of the Aged Care Act 1997 (Cth) (the Aged Care Act).
Arising from recommendations made by the Royal Commission into Aged Care Quality and Safety (the Royal Commission) and the Independent Review of the Legislation Provisions Governing the use of Restraint in Residential Aged Care (the Restraint Review), the Principles were amended by the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (the Amending Principles) made on 28 June 2021. The amendments introduced a much more stringent regime regarding the use of restrictive practices. The amendments in Schedule 1 to the Amending Principles took effect from 1 July 2021. The amendments in Schedule 2 took effect from 1 September 2021.[13]
[13] See Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021, section 2
Schedule 1 contained a new Part 4A to the Principles dealing with “behaviour support and restrictive practices” comprising sections 15D – 15GB. An earlier Part 4A, comprising sections 15D – 15J, was repealed “at the start of 1 July 2021”.[14] This must be borne in mind when reading decisions concerning the use of restrictive practices (such as VZM[15] and SZH[16] on which Mr Harcourt relied) that refer to the now repealed sections in the earlier and now repealed Part 4A.
[14] Quality of Care Principles 2014, compilation No. 8, compiled at 1 April 2021, section 15J(1)
[15] VZM [2020] NSWCATGD 25
[16] SZH [2020] NSWCATGD 28
Section 15FA of the Principles (which came into effect on 1 July 2021 with amendments with effect from 1 September 2021) introduced significantly more stringent requirements for the use of a restrictive practice.
Section 15FA(1) states:
15FARequirements for the use of any restrictive practice
(1)The following requirements apply to the use of any restrictive practice in relation to a care recipient:
(a)the restrictive practice is used only:
(i)as a last resort to prevent harm to the care recipient or other persons; and
(ii)after consideration of the likely impact of the use of the restrictive practice on the care recipient;
(b)to the extent possible, best practice alternative strategies have been used before the restrictive practice is used;
(c)the alternative strategies that have been considered or used have been documented in the behaviour support plan for the care recipient;[17]
[17] The words “in the behaviour support plan for the care recipient” were added after the word “documented” with effect from 1 September 2021, per Schedule 2, paragraph 1, to the Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021
(d)the restrictive practice is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons;
(e)the restrictive practice is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons;
(f)informed consent to the use of the restrictive practice has been given by:
(i)the care recipient; or
(ii)if the care recipient lacks the capacity to give that consent—the restrictive practices substitute decision maker for the restrictive practice;
(g)the use of the restrictive practice complies with provisions of the behaviour support plan for the care recipient that relate to the use of the restrictive practice;[18]
(h)the use of the restrictive practice complies with the Aged Care Quality Standards set out in Schedule 2;
(i)the use of the restrictive practice is not inconsistent with the Charter of Aged Care Rights set out in Schedule 1 to the User Rights Principles 2014;
(j)the use of the restrictive practice meets the requirements (if any) of the law of the State or Territory in which the restrictive practice is used.
[18] The words “provisions of the behaviour support plan for the care recipient that relate to the use of the restrictive practice” were substituted for the earlier words “any relevant provisions of the care and services plan for the care recipient” with effect from 1 September 2021, per Schedule 2, paragraph 2, to the Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021.
It can be seen that all of the provisions in section 15FA, save for section 15FA(1)(f), concern the lawful use of a restrictive practice. Section 15FA(1)(f) concerns lawful consent to the use. The difference between the two functions “cannot be overstated.”[19]
[19] See HZC [2019] NSWCATGD 8 at [68]; VZM [2020] NSWCATGD 25 at [47]-[56],[60]; Re Ben [2020] ACAT 82 at [43], [48]
In MS, the Western Australian State Administrative Tribunal (WA SAT) observed that to hold a person in a place (in this case, Frieda in the MSU) without the person’s consent or the consent of someone with authority to give it (absent circumstances of emergency) could “give rise to civil actions for false imprisonment, or to criminal prosecution for deprivation of liberty”.[20] The WA SAT noted the observation of the High Court in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) that:
consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact.[21]
An attorney as a restrictive practices substituted decision-maker
[20] See MS [2020] WASAT 146 at [48], and the authorities there referred to.
[21] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15 at [11]
The term “restrictive practices substitute decision-maker”, in section 15FA(1)(f)(ii), was introduced with effect from 1 July 2021.[22] It is defined in section 4 of the Principles as follows:
restrictive practices substitute decision-maker, for a restrictive practice in relation to a care recipient, means a person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent to:
(a) the use of the restrictive practice in relation to the care recipient; and
(b) if the restrictive practice is chemical restraint—the prescribing of medication for the purpose of using the chemical restraint;
if the care recipient lacks the capacity to give that consent.
[22] Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021, Schedule 1, section 4. Prior to 1 July 2021, the provider of a restrictive practice needed to obtain consent from a “representative of a consumer”, defined in section 5 of the Principles to include a close relation or other relative of the consumer or a person who holds an enduring power of attorney given by the consumer. There was no consideration to the question whether that representative had power to give consent or that the power be under a State or Territory law. See generally VZM [2020] NSWCATGD 25 at [60(4)] and Re Evelyn [2021] ACAT 126 at [106]-[110]. These new requirements, per the definition of a ‘restrictive practices substitute decision-maker’, prompted Jill’s application to the Tribunal.
Arising from this term, the question for determination was whether Jill, by reason of her appointment under the EPOA, is a restrictive practices substitute decision-maker? By reference to the definition, two issues arose:
(1)Does Jill have power “under the law of the [Territory] in which [Frieda] is provided with aged care”, namely the ACT?
(2)If so, does the power extend to giving “informed consent” to the use of the restrictive practice?
Regarding the first issue, the POA Act is plainly part of the law of the ACT, being the place where Frieda “is provided with aged care”. Noting no question arose about the validity of the EPOA, it too is part of the ‘law’ of the ACT according to its terms. This aspect of the definition is therefore met. Mr Harcourt agreed.[23]
[23] Transcript of proceedings, 25 November 2021, page 13, lines 24-44
I add that the same would be true for an enduring power of attorney validly made under the law of a State or another Territory. Such an instrument would also be operative in the ACT, as part of the ‘law’ of the ACT to the extent permissible under section 89(2) of the POA Act, which provides:
(2) An interstate enduring power of attorney[24] to which this section applies is taken to be an enduring power of attorney made under, and in compliance with, this Act, to the extent that the powers it gives could validly have been given by an enduring power of attorney made under this Act.
[24] An interstate enduring power of attorney is defined in section 89(1) to mean a document expressed to be a power of attorney or guardianship document made under the law of a State or another Territory that is not revoked if the principal loses decision-making capacity or is expressed to be irrevocable, whether completely or for a stated period.
The second issue was the subject of Mr Harcourt submissions. Does the EPOA, by its terms, empower Jill to give informed consent to the use, in this case, of an environmental restraint in relation to Frieda?
For the purpose of ascertaining the ambit of Jill’s powers, Mr Harcourt referred to sections 13(1) and 13(2) of the POA Act, which state:
13 Appointment of attorneys
(1) An adult (the principal) may, by a power of attorney, appoint 1 or more people to do anything for the principal that the principal can lawfully do by an attorney.
(2) By an enduring power of attorney, an adult (the principal) may also appoint 1 or more people to do anything in relation to 1 or more property matters, personal care matters, health care matters or medical research matters for the principal that the principal could lawfully do by an attorney if the principal had decision-making capacity for the matter when the power to do the thing is exercised.
Regarding the meaning of ‘do anything’, in sections 13(1) and (2), Mr Harcourt referred to established principles of statutory construction which provide that “words in a statute are to be given their ordinary and settled meaning” unless the context indicates otherwise.[25] The ordinary meaning of ‘anything’ is “any thing whatever; something, no matter what; a thing of any kind, in any degree; to any extent”.[26]
[25] Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) CLR 129 at 148-149
[26] Macquarie Dictionary (seventh edition)
Mr Harcourt said that by the words ‘do anything’ in section 13(1), there is no qualification on the power or powers that may be given to an attorney under a general power of attorney.[27] By contrast, he said, section 13(2) deals with an enduring power of attorney and imposes subject matter restrictions drawn from the definitions of personal care matter and health care matter which exclude “special personal matters” and “special health care matters”, respectively. Those terms are defined in sections 36 and 37 of the POA Act as follows:
[27] Submissions of Goodwin Aged Care Services Limited, 2 December 2021, paragraph 38
36 Special personal matters
(1) For this Act, each of the following is a special personal matter for a principal:
(a) making or revoking the principal’s will;
(b) making or revoking a power of attorney for the principal;
(c)exercising the principal’s right to vote in a Commonwealth, Territory, State or local government election or referendum;
(d)consenting to the adoption of a child of the principal who is under 18 years;
(e) consenting to the marriage of the principal.
(2) In this section:
will includes a codicil.
37 Special health care matters
(1) For this Act, each of the following is a special health care matter for a principal:
(a)removal of non-regenerative tissue from the principal while alive for donation to someone else;
(b)sterilisation of the principal if the principal is, or is reasonably likely to be, fertile;
(c)termination of the principal’s pregnancy;
(d)electroconvulsive therapy or psychiatric surgery;
(e)health care prescribed by regulation.
Regarding the introduction of these exclusions, Mr Harcourt referred to the Second Reading Speech in which Minister Corbell stated:
Precluding these matters from substitute decision-making powers is intended to protect a vulnerable principal from any misuse or abuse of [a] power of attorney.[28]
[28] ACT Parliamentary Debates, Legislative Assembly, 21 September 2006 at page 3008
Mr Harcourt submitted that “the differential drafting” of sections 13(1) and (2) “is likely indicative of a parliamentary intention that powers under an enduring power of attorney be construed more narrowly than those under a general power of attorney”.[29] He referred to further comment of Minister Corbell, as follows:
Safeguards provided in the Powers of Attorney Bill will address the abuse of older people’s powers of attorney that has been a worrying issue for Canberrans. The outcome of the Powers of Attorney Bill will be that the principal’s interests, rights and wishes will be upheld even after the principal has become vulnerable due to the loss of decision-making capacity…[30]
[29] Submissions of Goodwin Aged Care Services Limited, 2 December 2021, paragraph 40
[30] ACT Parliamentary Debates, Legislative Assembly, 21 September 2006 at page 3007
Mr Harcourt acknowledged, however, that the debate at the time did not involve an examination of issues relating to the use of restrictive practices. The debate was more about protecting elderly people from making a power of attorney, or (in particular) an enduring power of attorney, without the person fully understanding its meaning and effect. In my experience, whilst not an issue in this case, the need for such protection remains a serious concern.[31]
[31] See Re Clara [2019] ACAT 46 at [84]-[96], [155], [220] - [226] and [257]
Mr Harcourt submitted that section 13(2) was not intended or drafted so as to permit an attorney appointed under an enduring power of attorney to provide consent to the use of a restrictive practice.[32]
Human rights and the attorney’s power
[32] Submissions of Goodwin Aged Care Services Limited, 2 December 2021, paragraph 49
In support, Mr Harcourt drew on the principle of legality, which provides that legislation should not be construed so as to interfere with fundamental rights unless such intentions are clearly manifested by understandable and unambiguous language. In support, Mr Harcourt drew on the statements of the High Court, per Gleeson CJ, in Al-Kateb v Godwin:
Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language , which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.[33]
[33] Al-Kateb v Godwin [2004] HCA 37 at [19]
Mr Harcourt submitted that neither section 13(2) nor the definitions of ‘personal care matter’ or ‘health care matter’ contain the requisite “unambiguous language” that is necessary to empower Jill to consent to a restrictive practice.
Regarding the definition of ‘personal care matter’, Mr Harcourt acknowledged, by reference to the words “including the principal’s welfare” in the definition, that a “literal construction” of the definition supports a reading that the definition can include “certain environmental restraints”.[34] He acknowledged too that the examples of a personal care matter following the definition, whilst a part of the POA Act (meaning a part of section 11),[35] are not exhaustive of what is within the definition and may extend – but not limit – the meaning of the section.[36]
[34] Submissions of Goodwin Aged Care Services Limited, 2 December 2021, paragraph 77
[35] Legislation Act 2001, section 126(4)
[36] Legislation Act 2001, section 132(1)
Mr Harcourt submitted however that the literal construction should not be preferred. He said that the modern approach to statutory construction requires a purposive and contextual analysis.[37] Mr Harcourt relied on the decision, SZH,[38] in which the NSW Civil and Administrative Tribunal (NCAT) rejected the proposition that a power given to a guardian to make decisions regarding accommodation should be construed as including a power to restrain the person from leaving their accommodation. Rather, a specific power to do so is necessary. Mr Harcourt submitted that Jill’s power under the EPOA to make decisions regarding personal care matters should, similarly, not be construed as to include environmental restraint.
[37] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]-[71]
[38] SZH [2020] NSWCATGD 28 at [166]-[171]
Mr Harcourt noted that a similar position has been adopted in Western Australia, referring to the decision of the WA SAT in MS.[39] In that case, the WA SAT considered the circumstances of a young man with severe autism. As a consequence, MS has difficulty with emotional regulation and impulse control leading to multiple episodes of aggressive and destructive behaviours directed at himself, other persons (including support staff) and objects such as furniture, toys, clothing and cars. MS’s parents and support workers use restrictive practices to help manage these behaviours. At the time of the decision (25 November 2020), Western Australia was not a participant in the National Disability Insurance Scheme (NDIS).[40] Under the NDIS, service providers are required to obtain consent to use of restrictive practices from a person with authority to give it. The question before the WA SAT was whether the intended guardian needed a specific power to give consent to the restrictive practices that NDIS service providers thought necessary to use. The WA SAT concluded:
In our view, in this case, the preferable course is to confer on MS’ guardians [being his parents] a specific function of making decisions in respect of the use, on MS, of restrictive practices.[41]
[39] MS [2020] WASAT 146
[40] Western Australia entered the National Disability Insurance Scheme with effect from 1 December 2020: MS [2020] WASAT 146 at [26]
[41] MS [2020] WASAT 146 at [118]
Mr Harcourt noted that this tribunal took a similar approach in Re Ben, where it expressed doubt that a general power routinely granted to a guardian appointed under the GMP Act “to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect [the protected] person][42] from unreasonable risks to his health and welfare” should be construed as empowering the guardian to give consent to the use of a restrictive practice. Rather, to avoid the doubt, a guardian should hold a specific power to give that consent.
[42] ‘Protected person’ is defined in section 4 of the Guardianship and Management of Property Act 1991 to mean a person with impaired decision-making ability
Mr Harcourt also relied on recent decisions of the NCAT in TZD[43] and NZX[44] in which the NCAT found that the introduction of the term “restrictive practices substitute decision-maker” in the Principles was not a basis to depart from the settled view that a guardian needs a specific power in order to consent to the use of a restrictive practice for a person under guardianship.
[43] TZD [2021] NSWCATGD 14
[44] NZX [2021] NSWCATGD 16
Mr Harcourt submitted that there is no difference in principle between the circumstances considered in Ben regarding the ambit of the so-called ‘health and welfare’ power quoted in paragraph 56 and the ambit of a ‘personal care matter’ granted under the EPOA and defined in section 11 of the POA Act. He submitted that a specific power is necessary. Where Frieda now lacks capacity to authorise Jill to give that consent on her behalf, Jill needs to be appointed as Frieda’s guardian with specific power to give that consent.
Regarding the definition of ‘health care matter’, Mr Harcourt made a lengthy submission as to why medication to manage a person’s behaviour should be considered a chemical restraint, being a kind of restrictive practice, and why the definition should not be construed as including chemical restraint. On that basis, he submitted that an attorney empowered to make a decision regarding a health care matter does not have power to give consent to a chemical restraint and that a guardian needs to be appointed with that specific power.
Mr Harcourt submitted that a person’s human rights (and in this case Frieda’s human rights) are better protected through a narrow construction of section 13(2) of the POA Act to the effect that an attorney “appointed with plenary powers does not have authority to consent to the use of [restrictive practices]”.[45] In this respect, Mr Harcourt drew on section 30 of the Human Rights Act 2004 (ACT) (the HR Act) for the purpose of interpreting section 13(2) of the POA Act. Section 30 provides:
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
[45] Submissions on behalf of Goodwin Aged Care Services Ltd, 2 December 2021 at [66]
For the purpose of section 30, Mr Harcourt relied on the human rights set out in sections 13 and 18, which state:
13 Freedom of movement
Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT.
18 Right to liberty and security of person
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
For the purpose of interpreting sections 13 and 18 of the HR Act, Mr Harcourt referred to section 31 of the HR Act, which states:
31 Interpretation of human rights
(1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.
Mr Harcourt noted that section 31 is consistent with the statement of Maxwell P of the Supreme Court of Victoria, Court of Appeal, in Royal Women’s Hospital v Medical Practitioners Board of Victoria as follows:
[T]he provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State [or Territory]) should be interpreted and applied, as far as its language permits, so that it conforms with Australia’s obligations under a relevant treaty.[46]
[46] Royal Women’s Hospital v Medical Practitioners Board [2006] VSCA 85 at [75]
Mr Harcourt then referred to the NCAT decision in VZM in which the NCAT noted Article 12(4) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which requires that:
… measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. [emphasis added]
In keeping with Article 12 (4) of the CRPD, regarding the need for regular review, Mr Harcourt submitted:
At present, in the absence of any express statutory regime in the ACT to review the appointment and exercise of authority for the use of [restrictive practices] … this role is best undertaken by the ACAT.[47]
[47] Submissions on behalf of Goodwin Aged Care Services Limited, 2 December 2021, at [58]
Mr Harcourt submitted that review is necessary:
to ensure that it is not a set-and-forget type scenario where the consent having been given is then not revisited on a regular basis.[48]
[48] Transcript of proceedings, 25 November 2021, page 16, lines 11-13
It follows, he said, that it is necessary to appoint a guardian under the GMP Act with that express (or specific) power, noting that an order appointing a guardian must be reviewed by the Tribunal at least once every three years.[49]
[49] Guardianship and Management of Property Act 1991, section 19(2)
Mr Harcourt submitted that there is “no practical difference”[50] between an enduring power of attorney made in the ACT under the POA Act, and an enduring guardianship instrument of nomination made in NSW under the Guardianship Act 1987 (NSW). From there, Mr Harcourt referred to the NCAT’s decision in KBU[51] in which the NCAT ruled that an enduring guardian nominated under the NSW Act does not have authority to consent to medication used for the purposes of chemical restraint (that being a kind of restrictive practice).
Consideration
Previous Tribunal decisions and this declaration
[50] Submissions on behalf of Goodwin Aged Care Services Limited, 2 December 2021, at [68]
[51] KBU [2020] NSWCATGD 9
In the Tribunal’s recent decision, Re Evelyn,[52] I considered the question whether an attorney entrusted with a power under an enduring power of attorney to ‘do anything’ in relation to personal care matters could give consent to an environmental restraint. The power granted to the attorney in Evelyn[53] was materially identical to the power granted to Jill in this case. So too the facts in Evelyn were materially identical to the facts in this case, namely the attorney is the principal’s daughter; the principal lacks capacity arising from her suffering from dementia; the principal is accommodated in a residential aged care facility; and the principal is detained in the facility by the aged care provider (when appropriate) with the consent of the attorney to keep the principal safe.
[52] Re Evelyn [2021] ACAT 126 at [113]-[135]
[53] Re Evelyn [2021] ACAT 126 at [114]-[116]
In Evelyn, albeit without the benefit of argument or reference to any authority, I determined that the question of whether the enduring power of attorney empowered the attorney to give consent to an environmental restraint should be decided by reference to the ambit of ‘personal care matter’. I concluded that the ambit of personal care matter permitted the attorney to give consent to the restraint of the principal in the aged care facility. Two factors drew me to that conclusion.
First, the restraint was being exercised for the sole purpose of keeping Evelyn safe. Where a ‘personal care matter’ is defined to include a matter relating to the principal’s welfare, and where Evelyn’s welfare was the sole purpose of restraining Evelyn from leaving the facility, I concluded that giving consent to the restraint was within the ambit of the attorney’s power.
Second, under the enduring power of attorney, a judgement about whether a proposed restraint can be reasonably described as a personal care matter must be made in the context of the facts concerning the intended restraint and whether the law permits the proposed restraint. No purpose is served by asking whether a proposed restraint falls within the meaning of a personal care matter if the restraint is neither intended nor lawfully permissible.
That is confirmed, in my view, by the confinement of the attorney’s power to do anything the principal “can lawfully do” by an attorney. Whatever may be the ambit of an attorney’s power, it cannot exceed what the principal could have done if the principal had capacity.
In this respect, section 15FA(f)(i) of the Principles contemplates that the care recipient (meaning Frieda in this case) can themselves give informed consent to the use of the restrictive practice, as regulated by the other provisions in section 15FA and the other sections within Part 4A discussed below. Section 15FA(f)(ii) applies when the care recipient lacks capacity to give that consent. In that situation, an attorney with power to do so can give that consent on the care recipient’s behalf.
Consent given by the care recipient themself, or the attorney on the care recipient’s behalf, to the use of the restraint is not at large. It is consent to the use within the legislative framework that governs its use.
Notwithstanding the submissions of Mr Harcourt, I remained of the view I expressed in Evelyn. It follows, in this case, that Jill’s power under the EPOA to ‘do anything’ in relation to Frieda’s personal care matters included a power to give consent to Goodwin restraining Frieda from leaving the RACF because the consent would be within the context of the other requirements that must be met under section 15FA of the Principles in order for Goodwin to use the restraint.
I made a declaration accordingly, which should be understood and applied in the context of these reasons. In particular, the Tribunal’s declaration that the EPOA empowers Jill to give consent to others restraining Frieda from leaving a place should be understood as empowering Jill to give consent to others restraining Frieda from leaving a place in Frieda’s capacity as a care recipient under the Aged Care Act.
Notwithstanding my conclusion, I should respond to Mr Harcourt’s submissions.
Powers of Attorney Act, sections 13(1) and (2)
Regarding the contrast between sections 13(1) and 13(2) of the POA Act, with respect, I do not share Mr Harcourt’s interpretation of the sections. The sections are not mutually exclusive.
The term ‘power of attorney’, used in section 13(1), is defined in the Dictionary to the POA Act to mean:
a general power of attorney or an enduring power of attorney.
The terms ‘general power of attorney’ and ‘enduring power of attorney’ are defined in sections 7 and 8 of the POA Act, respectively:
7 What is a general power of attorney?
A general power of attorney is a power of attorney under this Act that operates only while the principal has decision-making capacity.
8 What is an enduring power of attorney?
An enduring power of attorney is a power of attorney under this Act that is not revoked by the principal becoming a person with impaired decision-making capacity.
It follows that section 13(1) applies also to an enduring power of attorney. The only qualification on what the attorney may do is that it be something “that the principal can lawfully do by an attorney”. That qualification is repeated in section 13(2), which remains the only qualification. I have commented above on that qualification.
Section 13(2) does not further limit what can be done under an enduring power of attorney. Rather, by the word “also”, it adds to what can be done (if the power of attorney is an enduring power of attorney) by stating that in relation to property matters, personal care matters, health care matters or medical research matters for the principal, the attorney may continue to “do anything” for the principal “if the principal had decision-making capacity” when the power is exercised. Implicitly, the attorney may continue to act if the principal lacks capacity when the attorney exercises the power.
The only restraint on an attorney doing ‘anything’ for the principal when the principal has capacity (whether under a general power of attorney or an enduring power of attorney) arises from section 31 of the POA Act which provides:
31 How does enduring power of attorney operate while principal has capacity?
(1) This section applies to an enduring power of attorney that operates while the principal has decision-making capacity.
(2) While the principal has decision-making capacity, the power of attorney operates as a general power of attorney in relation to property matters.
Having regard to sections 7, 8 and 31, it is clear that when a principal has capacity, an enduring power of attorney operates only in relation to property matters and as a general power of attorney. When the principal has capacity, the principal retains sole power to decide in relation to all other matters notwithstanding the enduring power of attorney.
Relevant for present purposes, where Frieda lacks capacity, I am not persuaded that anything can be drawn from the language in sections 13(1) and section 13(2), or a comparison between the language in the two sections, for the purpose of determining whether Jill has power to consent to Goodwin restraining Frieda in the aged care facility. Everything turns on the meaning of ‘personal care matter’.
Personal care matter
As Mr Harcourt points out, the Courts over time have developed common law approaches to the interpretation of legislation, first the so-called literal approach (which involves finding out the ordinary and natural meaning of the words used and then obeying that meaning)[54] and later the so-called purposive approach (which involves finding out the purpose of the legislation and then adopting an interpretation that is consistent with that purpose).[55] More recently, statutory interpretation involves consideration of the context in which the words are used.[56]
[54] See Pearce, Statutory Interpretation in Australia, (9th edition) at [2.6]
[55] See Pearce, Statutory Interpretation in Australia, (9th edition) at [2.5] – [2.10]
[56] See Pearce, Statutory Interpretation in Australia, (9th edition) at [2.11] – [2.12]
These approaches, however, are for the purpose of resolving different and contested interpretations. They do not overtake the primary obligation, namely to give effect to the text. “The present basis for interpreting legislation”[57] is stated by the High Court in SZTAL v Minister for Immigration and Border Protection[58] (SZTAL). In that case, Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.[59]
[57] Pearce, Statutory Interpretation in Australia (9th edition) at [2.1]
[58] [2017] HCA 34
[59] SZTAL at [14] per Kiefel CJ, Nettle and Gordon JJ
In SZTAL, Gageler J said:
.. … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and insofar as, it assists in fixing the meaning of the statutory text’.[60]
[60] SZTAL at [37]-[39] per Gageler J
Turning to the definition of ‘personal care matter’, the task is to give a meaning to the word ‘care’, qualified by it being ‘personal’ care and to include ‘welfare’. The context makes plain, in my view, that the relevant meaning of the word ‘care’ is “to look after; make provision for”,[61] coupled with the word ‘personal’, meaning care of the person, namely Frieda. It is also clear that the kind of care that may be given extends to, or includes, care for Frieda’s ‘welfare’, meaning “the state of faring well; wellbeing”.[62]
[61] Macquarie Dictionary (7th edition)
[62] Macquarie Dictionary (7th edition)
In my view, if a decision is made for the purpose of caring for Frieda, and/or to protect her wellbeing, it is within the scope of the power entrusted to Jill to make decisions regarding personal care matters.
All that remains is to determine whether the decision to restrain Frieda in the MSU is made for the purpose of her care and well-being – noting that Jill or, I assume, anyone else with Jill’s agreement, can take Frieda on outings from the RACF. If so, it is within Jill’s power to give consent to that decision. I am comfortably satisfied that that is Goodwin’s purpose and that Jill therefore has power under the EPOA to give consent to that decision. The only qualification (which only strengthens the lawfulness of the consent) is that the consent is for a restraint that can be lawfully used - meaning in accordance with Part 4A of the Principles.
No purpose is served by considering other powers, for example a power to make decisions regarding a person’s accommodation, as dealt with in SZH and MS. That is a different power for a different purpose.
“Including the principal’s welfare”
Jill impressed me as a balanced and thoughtful person who takes her responsibilities for her mother’s welfare very seriously. Jill contended for two matters concerning the use of environmental restraint.
First, a decision to restrain Frieda from leaving the MSU (or the RACF) should be “in conjunction”[63] with a doctor’s written advice in support of the proposed restraint, and the advice should be sent to Goodwin and to Jill.
[63] Transcript of proceedings, 25 November 2021, page 25, line 24
Second, consent to the use of the restraint should be “periodic”,[64] meaning periodically reviewed, because her mother’s care arrangements change dramatically. Jill suggested that the use of environmental restraint should be reviewed “at least yearly, but I think actually six monthly”[65] because the needs and circumstances of Frieda (and other residents at the RACF) change, especially in terms of their cognition. Jill acknowledged that the circumstances of some residents do not materially change, but for others they do. Jill said that it is “important to keep up”[66] with a resident’s current circumstances. She added that Goodwin is “really good with that”.[67]
[64] Transcript of proceedings, 25 November 2021, page 25, line 25
[65] Transcript of proceedings, 25 November 2021, page 26, lines 15 - 16
[66] Transcript of proceedings, 25 November 2021, page 27, line 20
[67] Transcript of proceedings, 25 November 2021, page 27, lines 19-21
In my view, Jill’s concerns have been addressed in the Principles, as amended from 1 September 2021, and in the Senior Practitioner Act 2018 (ACT) (the SP Act).
From 1 September 2021:
(a)Section 15HA of the Principles mandates that if an approved provider (meaning Goodwin in this case) provides aged care to a care recipient (meaning Frieda in this case) and behaviour support is needed for the care recipient, the approved provider “must ensure that a behaviour support plan for the care recipient is included in the care and services plan for the care recipient”.
(b)Section 15HB sets out matters that must be in the behaviour support plan.
(c)Section 15HC sets out additional matters that must be in the behaviour support plan “if the use of a restrictive practice in relation to a care recipient is assessed as necessary”.
(d)Section 15HD sets out additional matters that must be in the behaviour support plan if a restrictive practice is used.
(e)Section 15HE sets out matters that must be in the behaviour support plan “if a review of the use of a restrictive practice in relation to a care recipient … indicates a need for the ongoing use of the restrictive practice”.
(f)Section 15HF requires an approved provider to review a behaviour support plan for a care recipient and make any necessary revisions “on a regular basis” and “as soon as practicable after any change in the care recipient’s circumstances”.
(g)Section 15HG requires an approved care provider to consult with several named people regarding the preparation, review or revision of the behaviour support plan for a care recipient. If the use of a restrictive practice has been assessed as necessary, the approved care provider must also consult with “the approved health practitioner who made the assessment”. This requirement draws on section 15FB, which requires “an approved health practitioner who has day-to-day knowledge of the care recipient” to have “assessed the care recipient as posing a risk of harm to the care recipient or any other person”; and to have assessed “that the use of the restrictive practice is necessary”. The assessments must be documented.
I trust that the requirements for review of a behaviour support plan under sections 15HF and 15HG, and the need for an assessment by an approved health practitioner under section 15FB, address Jill’s concerns about timely review and about the use of a restrictive practice “in conjunction” with a report from a health practitioner.
Jill’s wish for periodic review is, in my view, also addressed by Goodwin’s obligations under the SP Act. In Evelyn, I explained my view that dementia is a “disability” for the purposes of the SP Act, section 8, and that the SP Act therefore regulates a residential aged care provider’s use of a restrictive practice to manage the behaviour of a person with dementia irrespective of the person living in a residential aged care facility.[68]
[68] See Re Evelyn [2021] ACAT 126 at [153] – [170]
If my view is correct, Goodwin must also prepare and register a positive behaviour support plan for Frieda regarding the use of a restrictive practice pursuant to sections 10 and 10A of the SP Act. Pursuant to section 18 of the SP Act the plan “expires” 12 months after it is registered – suggesting that a new plan needs to be registered every 12 months if the use of a restrictive practice is to continue. I expect, in practical terms, this will entail a review of the previous plan – which also addresses Jill’s concern about the need for periodic review.
I appreciate that many of Goodwin’s apparent obligations under the SP Act materially duplicate its obligations under the Principles. As stated in Evelyn, the duplication raises complex questions about the extent to which the SP Act should, for constitutional reasons, be read down to exclude its operation to the extent it is inconsistent with the Principles. However, duplication does not necessarily equate with inconsistency. I do not venture into answering these questions, although consideration of Mossop J’s recent text, The Constitution of the Australian Capital Territory,[69] would seem a useful starting point in addition to communication with the Senior Practitioner appointed under the SP Act.
Health care matter
[69] The Hon Justice David Mossop, The Constitution of the Australian Capital Territory (The Federation Press, 2021), pages 123-128
Mr Harcourt made a lengthy submission about the kinds of medical treatment that constitute a chemical restraint, that being a restrictive practice. With reference to the first example of a health care matter stated in section 12 of the POA Act, he drew a distinction between medical treatment necessary for “[a] principal’s wellbeing” and treatment (i.e. a chemical restraint) given for the wellbeing of other persons such as staff and other residents at a residential aged care facility. He submitted that a principal’s power under an enduring power of attorney to make decisions regarding health care matters does not empower the principal to give consent to a chemical restraint.
There was no suggestion that Goodwin is administering or wishes to administer medication to manage Frieda’s behaviour. It is therefore neither necessary nor appropriate for me to comment on whether the EPOA, empowering Jill to do on Frieda’s behalf “anything that [Frieda] can lawfully do by an attorney, in relation to [her] health care matters”, empowers Jill to give consent to Goodwin administering a chemical restraint
Human rights
The human rights in sections 13 and 18, to which Mr Harcourt referred, are not unconditional. Limits set by laws may be placed upon them in accordance with section 28 of the HR Act which provides:
28 Human rights may be limited
(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a)the nature of the right affected;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
In this case, the human rights to which Mr Harcourt referred are subject to limits “set by laws”, namely the Principles that regulate and authorise the use of restrictive practices. Having regard to the significant and detailed requirements that must be met under Part 4A of the Principles before an environmental restraint can be used on Frieda, or any other resident in an aged care facility, I am satisfied that those limits are “reasonable”. Where these limits are an outcome of the Royal Commission and are made by the Australian Parliament, I have no place to question that they “can be demonstrably justified in a free and democratic society”.[70] It follows that if an environmental restraint can be imposed in accordance with section 15FA, it would also be lawful under the HR Act by operation of section 28.
[70] In my view, this Tribunal does not have jurisdiction to determine otherwise, although that need not be decided in this proceeding.
I make a similar observation about the human right in section 18(2) of the HR Act. It has, within it, an exception – namely that the person may be deprived of their liberty “on the grounds and in accordance with the procedures established by law”. Sections 15HA-15HG of the Principles establish comprehensive procedures that must be followed when using a restrictive practice. Section 15FA(1)(g) and (h) requires compliance with those procedures when using a restrictive practice. It follows that if the environmental restraint is in accordance with these procedures it will also be in accordance with section 18(2) of the HR Act.
Decisions of other Tribunals
Reference to the outcomes in a case regarding restrictive practices to contend for the same outcome in another case should be approached with care. Cases turn on their facts, which can differ from the facts in other cases in significant ways.
In Re CC, the NTCAT concluded:
Although I am confident in the conclusions I have reached in respect of the measures proposed for CC, this is a notoriously fraught area. The dividing line between measures to which a guardian with the necessary authority may agree and measures that are restrictive practices will not always be clear.
For that reason, the outcome of the present case should clearly be understood in light of its particular facts.[71]
[71] Re CC [2019] NTCAT 13 at [58]-[59]
All of the cases to which Mr Harcourt referred, save for KBU, involved powers granted to a guardian appointed by a tribunal and whether a power expressed in general terms to make decisions regarding accommodation, health and/or welfare of a person under guardianship is sufficient for the guardian to make a decision that the person be subject to a restrictive practice. I accept from those decisions that the growing consensus is ‘no’, or that it is doubtful, and that a specific power is necessary. Those cases, however, differ from this case in several important ways.
First, the guardianship cases on which Mr Harcourt relied (and others) involved the grant of power by a third party (i.e. a tribunal) to a person appointed as a guardian in a circumstance where the person the subject of the application had impaired decision-making capacity, and was not meaningfully able to decide the kinds of powers that should be entrusted to the guardian. The question was whether the tribunal, by the grant of a power in general terms to the guardian, intended to permit the guardian to give consent to a restrictive practice. The consensus among tribunal decisions is that a specific power should be given to remove the doubt.[72]
[72] Re Ben [2020] ACAT 82
By contrast, the appointment of an attorney is made by the principal in a circumstance where the principal (it must be assumed) had capacity to decide upon what powers to entrust to the attorney; to decide what limits (if any) to place on the exercise of those powers; and to decide who they wished to entrust as their attorney.
In this case, Frieda empowered her daughter, Jill, to do ‘anything” that she (Frieda) could lawfully do by an attorney in relation to her “personal care matters” (as defined) while Frieda has impaired decision-making capacity. There is no apparent reason for concluding that when Frieda entrusted Jill under the EPOA to make decisions regarding Frieda’s welfare, she did not intend Jill to have power to make decisions for the purpose of keeping Frieda safe (including a decision to restrain her from wandering from a residential aged care facility to become lost, fearful and/or endangered) - especially where the EPOA made provision for any limitation that Frieda wished to place on Jill’s power but Frieda granted the power to Jill without limitation.
If it were otherwise, one might equally question whether Frieda intended to entrust Jill to place her in a residential aged care facility or to make other decisions that might seem (to others) to be contrary to what Frieda would have preferred if she had capacity. Such an approach would make the EPOA unworkable. It is one thing to challenge the appropriateness of a decision. It is quite another to contend that the attorney did not have power to make it.
Second, the guardianship cases on which Mr Harcourt relied were determined in a context of the guardian having power to consent and implement a restrictive practice without regard to who would be using (or exercising) the restrictive practice or what legislative or other conditions would govern its use. True, in many cases the use of a restrictive practice by an external service provider (for example a provider under the NDIS[73] or an approved aged care provider) is heavily regulated. However, that is not always the case. For example in Ben, to which Mr Harcourt referred, many of the intended restrictive practices were to be used by Ben’s NDIS service provider but also by others who are not regulated in their use of restrictive practices. It was, for that reason, that the Tribunal placed a proviso on the grant of power to the guardians (i.e. Ben’s parents) by requiring that consent to a restrictive practice could be given only where the restraint “is solely for the purpose of protecting the protected person from risk of harm”.
[73] HZC [2019] NSWCATGD 8
By contrast, this application arose in the context of section 15FA(1)(f)(ii) of the Principles and was made the purpose of removing doubt about whether Jill is a ‘restrictive practices substitute decision maker’, meaning she can give informed consent for Goodwin to restrain Frieda in the aged care facility (as it has done for many years) and in accordance with the stringent requirements under (new) Part 4A. The Tribunal’s declaration about the scope of Jill’s power under the EPOA was made in that context and for that purpose.
KBU, in my view, is not relevant. That case concerned a principal, KBU, who had made an enduring power of guardianship (being the equivalent of an enduring power of attorney under the POA Act) appointing DSU as his enduring guardian (being the equivalent of an attorney appointed under an ACT enduring power of attorney) with power to “consent to medical and dental treatment”.[74] The question for determination in KBU was whether this power empowered DSU to give consent to the administration of an antipsychotic drug, risperidone, to assist in managing KBU’s physically and verbally aggressive behaviour which was occurring as a result of his dementia.
[74] KBU [2020] NSWCATGD 9 at [3]
The NCAT in KBU used the definition of “medical treatment” in section 33(1)(a) of the Guardianship Act 1987 (NSW) for the purpose of construing the meaning of medical treatment in the enduring power of guardianship. The NCAT in KBU followed the NCAT’s earlier decision in HZC in which the NCAT concluded that the administration of a psychotropic medication, being a chemical restraint, arguably, did not constitute medical treatment. Accordingly, the NCAT in KBU determined that DSU’s power under the enduring power of guardianship to give consent to medical treatment did not empower DSU to consent to the administration of risperidone, and that an NCAT guardianship order was necessary under which DSU would be empowered, specifically, to give or withhold consent to a chemical restraint.
KBU has no bearing on this case, which involves a different question: whether a ‘personal care matter’, as defined in section 11 of the POA Act, can include environmental restraint.
Review of the exercise of power
With respect, I do not share Mr Harcourt’s concern about the absence of a mechanism to review an attorney’s exercise of power under an EPOA.
As discussed in Evelyn,[75] the use of a restrictive practice on a person residing in a residential aged care facility is heavily regulated under the Aged Care Act. Where ‘behaviour support’ is needed for a care recipient, the aged care provider (meaning Goodwin in this case) must prepare a behaviour support plan as part of a care and services plan for the care recipient.[76] As mentioned above, sections 15HC - 15HG of the Principles prescribed many matters that must be done for the lawful use of a restrictive practice.
[75] See Re Evelyn [2021] ACAT 126 at [146]-[151]
[76] See Quality of Care Principles 2014, section 15HA(1)(b)
Failure by an aged care provider to comply with these obligations regarding the use of a restrictive practice can lead to the imposition of sanctions[77] including revocation or suspension of their approval as an aged care provider and restriction of payment of Commonwealth subsidies to help cover the cost of care.[78]
[77] See Aged Care Quality and Safety Commission Act 2018, Part 7B
[78] See Aged Care Quality and Safety Commission Act 2018, sections 63N and 63R
The Aged Care Quality and Safety Commission (the Commission) has a statutory function (among others) to monitor and enforce compliance with the Principles.[79]
[79] See In the matter of Evelyn [2021] ACAT 126 at [146]
Having regard to the detailed, transparent and accountable scheme established under the Principles for the use of a restrictive practice, and the Commission’s role to monitor and enforce compliance, I am not persuaded that an attorney appointed under an EPOA would have any ability to give consent to the use of a restrictive practice, if implemented, in a manner that would not be transparent and reviewable.
Also, if there were any concerns about an attorney’s consent to a restrictive practice, the Tribunal can (on application or on its own initiative) give a direction that the attorney do or not do a stated act; revoke the enduring power of attorney; suspend the enduring power of attorney;[80] or remove the attorney “if satisfied that it is in the interests of the principal to remove the attorney”.[81]
[80] Guardianship and Management of Property Act 1991, sections 62(2)(a), (c) and (d)
[81] Guardianship and Management of Property Act 1991, section 66
For these reasons, I am not persuaded that the Tribunal’s statutory obligation to review the appointment of a guardian at least every three years provides a system of review that is superior to the system that operates under the Aged Care Act or to the system that is available under section 62 of the GMP Act for review of actions or decisions made by an attorney concerning the use of a restrictive practice.
………………………………..
Presidential Member G McCarthy
| Date(s) of hearing: | 25 November 2021 |
| Solicitors for the Applicant: | Russell Kennedy Lawyers |
| Solicitors for the Respondent: | N/A |
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