Re Frieda (Guardianship)

Case [2022] ACAT 27

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 82

Re 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:

  1. The application dated 15 October 2021 for the appointment of a guardian is dismissed.

The Tribunal declares:

  1. The enduring power of attorney executed by [Frieda] on 23 December 2015 empowers her attorney to give consent to others restraining [Frieda] from…

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AGLC
Re Frieda (Guardianship) [2022] ACAT 27
Case
[2022] ACAT 27
Decision Date

CaseChat Overview and Summary

The case of Re Frieda involved Goodwin, an aged care provider, seeking the appointment of a guardian for Frieda, an elderly resident. The dispute centred around whether Goodwin had the authority to restrain Frieda from leaving a Residential Aged Care Facility (RACF) under an Enduring Power of Attorney (EPOA). The matter was heard in the relevant Tribunal. The central legal issue was whether the EPOA granted Goodwin the authority to restrain Frieda, and if this was consistent with the stringent regime introduced by the Quality of Care Principles 2014, as amended in June 2021. The Tribunal had to consider the interplay between the EPOA, the new legislative framework, and the rights of Frieda as a resident.

The Tribunal examined the EPOA executed by Frieda in 2015 and noted that it empowered her attorney, Jill, to give consent to Goodwin restraining Frieda from leaving the RACF. The Tribunal acknowledged Goodwin's concerns about potential non-compliance with statutory obligations regarding the use of restrictive practices but maintained that the EPOA did indeed provide the necessary authority. The Tribunal also highlighted Goodwin's interest in ensuring that the use of restrictive practices adhered to the stringent requirements introduced by the amended Principles, which came into effect from July and September 2021.

The Tribunal dismissed Goodwin's application for the appointment of a guardian. However, it made a declaration that the EPOA executed by Frieda empowered her attorney to consent to Goodwin restraining Frieda from leaving the RACF. This decision aimed to clarify the authority under the EPOA while ensuring compliance with the new legislative requirements. The Tribunal's ruling provided clarity for Goodwin, Frieda, and other relevant parties, balancing the rights of the resident with the legitimate concerns of the care provider.

The Tribunal's orders included the dismissal of the application for the appointment of a guardian and a declaration that Frieda's EPOA empowered her attorney to consent to Goodwin restraining her from leaving the RACF. This decision aimed to provide clarity and ensure compliance with the stringent legislative framework governing the use of restrictive practices in aged care.

Orders

Orders of the court

The Tribunal orders that:

1.

The application dated 15 October 2021 for the appointment of a guardian is dismissed.

The Tribunal declares:

2.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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