SKN

[2023] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SKN [2023] NSWCATGD 16

Hearing dates:

18 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Guardianship Division

Before:

A Britton, Deputy President
Dr F Duffy, Senior Member (Professional)
K Clark, General Member (Community)

Decision:

The functions of the enduring guardians, DBE and QSN appointed by SKN by instrument dated 24 May 2011 are varied to give the enduring guardians the function of consent to the use of restrictive practices subject to the following conditions:

The guardians may only consent to the use of restrictive practices to influence SKN’s behaviour:

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

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to SKN or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on SKN; and

(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to SKN’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SKN’s circumstances.

Catchwords:

REVIEW OF ENDURING GUARDIANSHIP – request to add a restrictive practices function – chemical restraint – principal is of advanced age – principal diagnosed with advanced dementia – principal resides in an aged care facility – consent requirements for the use of a restrictive practice – Quality of Care Principles 2014 (Cth) – whether the enduring guardianship instrument should be varied to include a restrictive practices function – finding that the appointed enduring guardians are suitable people to exercise a restrictive practices function – enduring guardianship instrument varied – order made

Legislation Cited:

Aged Care Act 1997 (Cth), ss 54-1(f), 54-9(1); Pt 2.3

Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 (Cth)

Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 6, 6A, 6A(1)(a), 6B(1), 6E(1)(a)-(e), 6(I), 6J, 6J(1)(b), 6K, 6K(1)(b), 6N, 14, 14(2), 16(1)(a), 17, 17(1), 17(1)(c), 18(1), 18(1A); Pt 2

Quality of Care Principles 2014 (Cth), ss 5B(1), 15E, 15FA, 15FA(1)(a)-(g), 15HA, 15HC, 15HC(a)-(c), 15HF

Cases Cited:

ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment

SKN (the person)
DBE (applicant, enduring guardian)
QSN (enduring guardian)
Public Guardian
NSW Trustee and Guardian
TBN (spouse)

Representation:

I Reed, separate representative for SKN

File Number(s):

NCAT 2023/00163262

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

1. In May 2011 former carpenter, SKN (the Father) executed an instrument appointing his wife, TBN (the Mother), as his enduring guardian, and if she refused or became unable or unwilling to act as his enduring guardian, his children, QSN (the Son) and DBE (the Daughter) (the 2011 EGA). In that instrument, the Father authorised the enduring guardian(s) to decide where he lives, the health care and other kinds of personal services he receives, and to consent to the carrying out of medical and dental treatment.

2. In September 2018, because of failing health, the Mother became unable to continue to act as the Father’s enduring guardian. As authorised by the 2011 EGA, the Son and the Daughter (the children) assumed the role of enduring guardians.

3. In September 2018, the Father was diagnosed with advanced dementia. The Mother was unable to continue to care for the Father at home and he moved to residential age care.

4. The Father is now 90 years of age.

5. In May 2023, the Daughter made an application to the NSW Civil and Administrative Tribunal (NCAT) seeking review of the 2011 EGA (the Application). In that application, the Daughter requested the Tribunal to exercise the power to vary the functions given to the enduring guardian(s) under the 2011 EGA, by adding a “restrictive practices” function. In that application, the Daughter explained that restrictive practices were being used to manage the Father’s “challenging behaviours”, including physical and verbal violence directed at nursing staff. The Son and the Mother support the Application.

6. Neither the Father nor the Mother participated in the hearing. The children advised that the Mother was unwell. In their opinion given the extent of his cognitive impairment the Father would be unable to participate. That opinion was consistent with the medical evidence and supported by the separate representative appointed for the Father in these proceedings, solicitor Ms Isabelle Reed. We proceeded to hear the application in the absence of the Father.

7. For the reasons that follow we have decided, as requested by the Daughter, to vary the 2011 EGA by adding a restrictive practices function.

Statutory framework

8. Part 2 of the Guardianship Act 1987 (NSW) deals with the appointment of enduring guardians. Contained in Pt 2 of that Act, s 6 provides that an “adult person may, by instrument in writing, appoint a person as his or her guardian”.

9. Section 6A of the Guardianship Act states that an appointment made under Pt 2 of that Act has effect only during such period of time as the appointor is “a person in need of a guardian” and, unless revoked or suspended under Pt 2, has effect during all such periods. A person in need of a guardian is defined as a person who, because of a disability, is totally or partially incapable of managing his or her person: Guardianship Act, s 3. A person with a disability is defined to include a person who is physically and/or psychologically 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 (support to live in the community): Guardianship Act, s 3(2).

10. The Guardianship Act gives the Tribunal power to review the appointment of an enduring guardian:

6J Tribunal’s review of appointment

(1)    The Tribunal:

(a)    may, on its own motion, and

(b)    must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an enduring guardian.

…

11. Section 6K of the Guardianship Act lists the powers available to the Tribunal on review of the appointment of an enduring guardian:

6K Action on review

(1)    On reviewing the appointment of an enduring guardian, the Tribunal may:

(a)    revoke the appointment or deal with the matter as provided by subsection (3) (or both), or

(b)    confirm the appointment, with or without varying the functions of the enduring guardian under the appointment.

(2)    The Tribunal must not revoke the appointment of an enduring guardian unless:

(a)    the enduring guardian requested the revocation, or

(b)    the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked.

(3)    The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor:

(a)    an application for a guardianship order under Part 3,

(b)    an application for a financial management order under Part 3A,

(c)    applications for both such orders.

(4)    The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where:

(a)    the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or

(b)    the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part,

(c)    if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made.

(5)    The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal.

12. Section 14 of the Guardianship Act gives the Tribunal power to make a guardianship order in respect of a person. If satisfied that the subject person is a “person in need of a guardian”, the Tribunal may exercise the discretion to make a guardianship order after taking into account the matters listed in s 14(2) of the Guardianship Act.

13. In exercising its functions under the Guardianship Act, the Tribunal and anyone exercising functions under that Act, including a guardian and enduring guardian, must observe the principles listed in s 4 of that Act:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

Restrictive practices: regulatory framework

14. The Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) (the Principles) govern the use of restrictive practices in residential aged care. A restrictive practice is defined as any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient: Aged Care Act, s 54-9(1). The Father is currently a “care recipient” for the purpose of Part 2.3 of the Aged Care Act. Section 15E of the Principles provides for five categories of restrictive practices: chemical restraint, environmental restraint, mechanical restraint, physical restraint, and seclusion.

15. Section 15E of the Principles defines “chemical restraint” to mean a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for the treatment of, or to enable treatment of, the care recipient for: a diagnosed mental disorder; a physical illness; a physical condition; or end of life care for the care recipient.

16. An aged care provider must ensure that a restrictive practice is only used in accordance with the circumstances set out in the Principles: Aged Care Act, s 54-1(f). Section 15FA of the Principles lists the requirements for the use of a restrictive practice. These include that a restrictive practice can only be used:

1. Except in an emergency, as a last resort to prevent harm to the care recipient or other persons, and after consideration of the likely impact on the use of the restrictive practice on the care recipient: the Principles, s 15FA(1)(a).

2. To the extent possible, where best alternative strategies have already been used, and where the alternative strategies that have been used or considered have been documented in the behaviour support plan for the care recipient: the Principles, ss 15FA(1)(b) and (c).

3. To the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons: the Principles, s 15FA(1)(d).

4. In the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons: the Principles, s 15FA(1)(e).

5. If informed consent is given by the care recipient, or the restrictive practices substitute-decision maker: the Principles, s 15FA(1)(f).

6. In compliance with any provisions of a behaviour support plan for the care recipient that relate to the use of the restrictive practice: the Principles, s 15FA(1)(g).

17. The Principles impose additional requirements for the use of chemical restraint:

15FC Additional requirements for the use of restrictive practices that are chemical restraint

(1) The following requirements apply to the use of a restrictive practice in relation to a care recipient that is chemical restraint:

(a)    the approved provider is satisfied that a medical practitioner or nurse practitioner has:

(i)    assessed the care recipient as posing a risk of harm to the care recipient or any other person; and

(ii)    assessed that the use of the chemical restraint is necessary; and

(iii)    prescribed medication for the purpose of using the chemical restraint; and

(iv)    obtained informed consent to the prescribing of the medication for the purpose of using the chemical restraint;

(b)    the following matters have been documented in the behaviour support plan for the care recipient:

(i)    the assessments;

(ii)    the practitioner’s decision to use the chemical restraint;

(iii)    the care recipient’s behaviours that are relevant to the need for the chemical restraint;

(iv)    the reasons the chemical restraint is necessary;

(v)    the information (if any) provided to the practitioner that informed the decision to prescribe the medication for the purpose of using the chemical restraint;

(va)    that the approved provider is satisfied that the practitioner obtained informed consent to the prescribing of the medication;

(vb)    the details of the prescription for the prescribed medication, including its name, dosage and when it may be used;

(vi)    a description of any engagement with persons other than the practitioner in relation to the use of the chemical restraint;

(vii)    a description of any engagement with external support services (for example, dementia support specialists) in relation to the assessments;

(c)    the use of the medication for the purpose of using the chemical restraint is in accordance with the prescription mentioned in subparagraph (b)(vb).

18. Section 15HA of the Principles states that if an approved provider provides aged care to a care recipient, and behaviour support is needed for the recipient, then the approved provider must ensure that a behaviour support plan is in place for the care recipient and that it is reviewed and revised in accordance with the requirements in the Principles. An approved provider must review a behaviour support plan for a care recipient and make any necessary revisions:(a) on a regular basis; and (b) as soon as practicable after any change in the care recipient’s circumstances: the Principles, s 15HF.

19. Section 15HC of the Principles sets out the information that must be contained in a behaviour support plan. This includes:

1. information about the behaviours of concern that are relevant to the need for the use of the restrictive practice: the Principles, s 15HC(a)

2. the restrictive practice and how is to be used (including its duration, frequency, and intended outcome): the Principles, s 15HC(b)

3. the best practice alternative strategies that must be used (to the extent possible) to address behaviours of concern before using the restrictive practice: the Principles, s 15HC(c).

Restrictive Practices: Informed Consent

20. A restrictive practice can only be used if informed consent to the proposed restrictive practice has been given by the care recipient or if the care recipient lacks the capacity to give informed consent, the “restrictive practices substitute decision-maker”: the Principles, s 15FA(1)(f). In NSW, “an individual or body is the restrictive practices substitute-decision maker for a restrictive practice in relation to a care recipient if the individual or body has been appointed, under [the Guardianship Act], as an individual or body that can give informed consent to the use of the restrictive practice in relation to the care recipient if the recipient lacks capacity to give that consent”: the Principles, s 5B(1).

21. In NSW the Guardianship Act permits:

1. the Tribunal, if satisfied that the care recipient is a person in need of a guardian and that the discretion to make a guardianship order should be exercised, to appoint a guardian for that care recipient and to give that guardian authority to consent to, or to withhold consent to, the use of a restrictive practice for that care recipient: Guardianship Act, ss 14 and 17

2. an individual (the appointor) to appoint an enduring guardian and to give the enduring guardian authority to consent to the use a restrictive practice on their behalf. That authority only comes into effect if the appointor is a person in need of a guardian.

22. It follows that a guardian appointed by the Tribunal under a guardianship order and given authority to consent to or to withhold consent to the use of restrictive practices for the person the subject of that order is a “restrictive practices substitute-decision maker” for the purpose of s 5B(1) of the Principles. Likewise, an enduring guardian appointed by a person (the appointor) under Pt 2 (Appointment of enduring guardian) of the Guardianship Act and given authority to consent to or to withhold consent to the use of restrictive practices is the appointor’s “restrictive practices substitute-decision maker” for the purpose of s 5B(1) of the Principles.

Is the Father “a person in need of a guardian”?

23. In a report dated 20 September 2018, the Father’s GP of 25 years, Dr Brad Bitossi, certified that the Father has advanced dementia and is “no longer able to make informed decisions about personal matters”. In a more recent report dated 29 June 2023, Dr Bitossi stated that the Father’s dementia was “now severe”.

24. In a report dated 12 March 2022, geriatrician Dr Asanka Withanage stated:

1. that the Father has “suffered from dementia syndrome for at least a couple of years now” and the most probable diagnosis was Alzheimer’s and vascular mixed dementia severe stage CDR [Clinical Dementia Rating] 3.0”

2. that cerebral imaging shows “significant cortical atrophy in the frontal/temporal regions and a degree of small vessel disease

3. that the Father requires constant prompting, directions and redirection to complete most activities of daily living

4. that the Father uses a wheelchair and requires the assistance of two carers with sling to transfer to and from bed

5. at the care facility, the Father has displayed “significant behavioural symptoms of dementia; has been verbally and physically aggressive towards staff and has been hitting and punching staff.

25. In a statement prepared for these proceedings, the Daughter stated that in her opinion her father was no longer able to make informed decisions. She stated that her father requires a high level of personal care and support. The Son agreed with that opinion.

Consideration

26. By s 6N of the Guardianship Act, the report dated 20 September 2018 prepared by Dr Bitossi, is evidence that on that day the Father was a person in need of a guardian. More recent evidence reveals that the Father’s dementia has deteriorated further and, as a consequence, the Father is unable to perform many activities of daily living, including toileting and other aspects of personal care. He now requires significant support to live in the community. It follows that the Father remains a person in need of a guardian and the 2011 EGA continues to be in effect: Guardianship Act, s 6A(1)(a). In addition, because the Father is a person in need of a guardian, the discretion to make a guardianship order can be exercised.

Should the discretion to review the appointment of the Daughter and the Son and to vary the 2011 EGA be exercised?

27. We are satisfied that the Daughter has a genuine concern for the welfare of the Father. Therefore, we must review the appointment of the Daughter and the Son: Guardianship Act, 6J(1)(b).

28. The powers available to us on review of the 2011 EGA are:

1. to confirm the 2011 EGA and vary the functions conferred by the Father under that appointment

2. to confirm the 2011 EGA and not vary the functions conferred by the Father under that appointment

3. to revoke the 2011 EGA

4. if, we consider that it is in the best interests of the Father to do so, to deal with a review as if any it was:

1. an application for a guardianship order

2. an application for a financial management order

3. an application for both a guardianship and a financial management order.

29. Before considering whether, as requested by the Daughter, the discretion to confirm the appointment of the children and to vary that appointment to include a restrictive practices function should be exercised, we will consider whether it is necessary and appropriate that a substitute decision-maker (an enduring guardian or a guardian) be given a restrictive practices function. If the answer to that question is no, there would be no utility in reviewing the appointment of the Daughter and the Son.

Restrictive practice function

30. In a report dated 12 March 2022, specialist geriatrician Dr Withanage described the “significant behavioural and psychological symptoms of dementia” being displayed by the Father in the care facility: frequently hitting and punching carers and on a regular basis being verbally aggressive and agitated towards carers. Dr Withanage stated that as a result, care staff are at times unable to provide personal care and incontinence care to the Father. Dr Withanage noted that the Father was being given risperidone to manage BPSD [Behavioural and Psychological Symptoms in Dementia]. Dr Withanage recommended switching to quetiapine.

31. In a report dated 4 August 2022, Dr Withanage stated that during his “good times with less BPSD”, the Father required the assistance of two carers during personal care. However, on numerous occasions, with “escalating physical aggression behaviours”, the Father required three to four carers. These behaviours pose a risk to the Father and others. Dr Withanage recommended an increase in the Father’s dosage of quetiapine.

32. In a medical certificate dated 4 April 2023, Dr Bitossi stated that the Father “sadly is often violent with care staff … and this is not his personality”. Medication had to be used to stabilise his behaviours and to protect staff. The Father is well cared for and medically stable. Other non-chemical measures have been trialled and have failed.

33. A behavioural support plan in relation to the Father, dated 2 November 2022, listed a series of “non-pharmaceutical interventions” being used to manage the Father’s “behaviours of concerns” and recorded that quetiapine was being used to manage those behaviours as a “last resort”.

34. In a joint statement dated 19 April 2023, the Daughter and the Son confirmed Drs Withanage and Bitossi’s observations that their father was physically and verbally aggressive towards staff. They stated that they have witnessed the Father striking staff, lashing out and injuring himself in the process. In consultation with Dr Bitossi, physical and chemical restraints have been used, with varying degrees of success. They confirmed Dr Bitossi’s opinion that this behaviour was “entirely out of character” for their father.

35. In the hearing to determine the application for review of the 2011 EGA (the hearing) the Daughter said with the use of quetiapine the Father was less distressed and agitated and the incidents of outbursts of aggressive behaviour had reduced. It was in his interests that the Father’s aggressive behaviour be controlled as it posed a risk of harm to him and to care staff. Given their father’s total dependence on others for all aspects of personal care, it was in his interests that staff be able to provide him with care, which they were unable to do when he was exhibiting “extreme behaviours”. The Daughter said that her interest was to ensure that in his remaining years her father’s quality of life was as good as possible. In her view, the advantages of the use of quetiapine outweighed its disadvantages. The Son agreed with those comments.

Consideration

36. The Father is currently being given quetiapine for the primary purpose of influencing his behaviour. The use of quetiapine is a restrictive practice, specifically chemical restraint. The weight of evidence is that the Father is now unable to give informed consent to the use of quetiapine, or indeed to any restrictive practice. The Principles require that consent be given to the use of quetiapine, or indeed any restrictive practices used for the Father. In circumstances where the Father lacks capacity to give informed consent to the use of any restrictive practice, we find that it is necessary and appropriate that a restrictive practice function be given to any enduring guardian appointed by the Father, or any guardian appointed by the Tribunal.

37. It follows that it is necessary to decide whether to exercise the discretion to confirm the 2011 EGA and to add a restrictive practices function or whether to make a guardianship order and to give the appointed guardian a restrictive practices function.

Can and should the 2011 EGA be varied to include a restrictive practices function?

38. Section 6K(1)(b) of the Guardianship Act permits us to confirm the appointment of the Daughter and the Son and to vary the functions given to them under that instrument by adding a restrictive practices function.

39. Apart from s 4, the Guardianship Act does not provide express guidance about the considerations relevant to the exercise of the discretion to confirm the appointment of an enduring guardian and to vary or not vary the functions of the enduring guardian.

40. As a starting point in deciding whether to exercise the discretion to confirm the appointment of an enduring guardian, it is necessary to decide whether the enduring guardian is a suitable person to continue to act in that role. This requires consideration of whether the enduring guardian has and is likely to continue to be able and willing to discharge the functions conferred under the appointment in a manner consistent with the s 4 principles of the Guardianship Act (the section 4 principles). Among other things, those principles require that paramount consideration be given to the welfare and interest of the appointor: Guardianship Act, s 4(a).

41. We find that the Daughter and the Son are suitable people to continue to act as enduring guardians for the Father and to continue to discharge the functions given to them by the Father: to decide where he lives, the health care and other kinds of personal services he receives, and to consent to the carrying out of medical and dental treatment.

42. The available material reveals that in making decisions on behalf of their father, the Daughter and the Son are diligent, conscientious, and thoughtful. The Daughter is more directly involved with decisions involving the care and treatment of the Father. She consults with the care facility and the Father’s treating doctors on a regular basis about all decisions relating to the Father’s care and medical treatment. The Daughter and the Son visit their father on a regular basis and consult with each other about any decisions of significance involving their father. The Daughter’s claim that she is committed to ensuring her father’s quality of life in his remaining days was consistent with the observations of the separate representative, Ms Isabelle Reed, and the opinion of Dr Bitossi.

43. In a letter dated 29 June 2023 prepared for these proceedings, Dr Bitossi stated that he has always found the Daughter and the Son to be approachable “and to only act in their father’s best interest to maintain his health and welfare”.

44. Ms Reed supported the appointment of the Daughter and the Son being confirmed and varied to include a restrictive practices function. She confirmed the claim made by the Daughter and the Son that the family was close and that they visit their father on a regular basis. In her view, both are “very capable people” who enjoy a close relationship with their father and in their role as enduring guardians endeavour to act in their father’s best interests.

Consideration

45. We find that the Daughter and the Son are suitable people to act as their father’s enduring guardian. Subject to consideration of the question of whether the Father’s interest would be better served if the Daughter and the Son were to be appointed guardians for their father under a guardianship order, we find it would be appropriate to confirm the 2011 EGA.

Are the Daughter and the Son suitable people to exercise a restrictive practice function for the Father?

46. This question requires consideration of:

1. the wishes of the Father, and

2. whether the Daughter and the Son are willing and able to give consent, or to withhold consent, to the use of restrictive practices for their father (the restrictive practices function) in a manner which is consistent with the section 4 principles of the Guardianship Act.

The wishes of the Father

47. As noted, the Father did not participate in these proceedings. He is now unable to express a view about whether the 2011 EGA should be varied to include a restrictive practices function. There is no evidence of him ever having expressed a view about that issue.

48. In 2011, when the Father made the EGA, he gave his wife, and in the alternative his children, the “standard” functions listed in ss 6E(1)(a)-(d) of the Guardianship Act:

6E Functions of enduring guardians

(1)    Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions—

(a)    deciding the place (such as a specific nursing home, or the appointor’s own home) in which the appointor is to live,

(b)    deciding the health care that the appointor is to receive,

(c)    deciding the other kinds of personal services that the appointor is to receive,

(d)    giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor,

(e)    any other function relating to the appointor’s person that is specified in the instrument.

(2)    The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of the functions specified in subsection (1).

49. The Father did not give his children a restrictive practices function or any other additional function as permitted by s 6E(1)(e) of the Guardianship Act. In our view, the most likely explanation for the omission of restrictive practice function is that neither the Father nor the solicitor who prepared the 2011 EGA were aware of the concept of restrictive practices or foresaw that if the Father were to become a person in need of a guardian, there would be a need for a person to give, or to withhold consent, to the use of restrictive practices. In Australia the use of restrictive practices came to public attention as a result of the Royal Commission into Aged Care Quality and Safety, which was established in October 2018. Before the amendments to the Aged Care Act and the Principles were introduced by the Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 (Cth) on 1 July 2021 there was uncertainty surrounding whether aged care providers were required to ensure that informed consent was given to the use of restrictive practices.

50. It cannot be inferred from the Father’s failure to give his children a restrictive practices function that he considered them unsuitable to exercise that function or did not want to appoint a person to exercise that function on his behalf. Arguably, the fact that the Father gave his children authority to give consent to the carrying out of medical treatment could be said to indicate that if he had foreseen that there might be a need for a person to give or to withhold consent to the use of restrictive practices, he would have given his children that authority. While different to decisions relating to the use of restrictive practices, the considerations that arise in giving consent to medical and dental treatment share many similar characteristics.

Willing and able to exercise the restrictive practices function, in a manner which is consistent with the section 4 principles of the Guardianship Act

51. To be eligible for appointment as an enduring guardian or a guardian, a person must be 18 years of age or older: Guardianship Act, ss 6B(1), 16(1)(a).

52. To appoint a person as guardian for a person for whom a guardianship order has been made, the Tribunal must be satisfied that the proposed guardian satisfies the criteria in s 17(1) of the Act:

17 Guardians

(1)    A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that—

(a)    the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)    there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)    the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

53. There is no equivalent provision to s 17 of the Guardianship Act which applies to the appointment of an enduring guardian. The only requirement, in addition to the age requirement imposed by s 6B(1) of the Guardianship Act, is the requirement that a person is ineligible for appointment as an enduring guardian if they provide for fee or reward to the appointor medical services, accommodation, any other services, to support the appointor in their activities of daily living, or is the spouse, parent, child, brother or sister of a person who provides such services: Guardianship Act, s 6B(1).

54. In our view, where, as here, the Tribunal is considering whether to exercise the discretion to add to the functions conferred by the appointor, the criteria in s 17(1) of the Guardianship Act provides useful guidance to the factors which inform the exercise of that discretion. Of particular relevance in the circumstances of this case is the requirement that the Tribunal be satisfied that “the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order”: Guardianship Act, s 17(1)(c).

55. In ZKF v ZKG [2019] NSWCATAP 64, the Appeal Panel said at [31] that s 17(1)(c) of the Guardianship Act required the Tribunal to make an evaluative judgement about whether the appellant was “able” to exercise the relevant function:

“This required the Tribunal to consider not only whether the appellant possessed the necessary skill and experience to be able to exercise that function (or put another way, to make decisions about his mother’s accommodation on her behalf) but also whether he had the personal attributes, such as judgement and integrity, required to exercise that function. In addition, as correctly acknowledged by the Tribunal, this required the Tribunal to consider whether the appellant was able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J).”

56. Adopting that approach, the question posed is whether the Daughter and the Son are able to exercise the restrictive practices function in a manner consistent with the section 4 principles.

57. That an enduring guardian has demonstrated that they are able to exercise the functions conferred by the appointor in a manner which conforms with the section 4 principles, does not necessarily establish that they will be able to exercise other functions in that manner, including a restrictive practices function.

58. Decisions concerning consent to the use of restrictive practices can be complex and require consideration of, among other things:

1. the nature of the care recipient’s behaviours of concern for which the proposed restrictive practice is recommended

2. the likely effect of the use of the restrictive practice on the care recipient

3. the relative advantages and disadvantages of the use of the proposed restrictive practice to the care recipient

4. whether any less restrictive type of restrictive practice could be used

5. whether a less restrictive form of restrictive practice has been trialled, and if so, whether the length of that trial was adequate

6. if able to be discerned, the views of the care recipient about the proposed use of the restrictive practices.

59. The obligation to give paramount consideration to the welfare and interests of the care recipient in giving or withholding consent to the use of the restrictive practice, will generally require that the person authorised to consent to their use:

1. has a general understanding of the rules governing the use of restrictive practices

2. is able to critically evaluate the available information about the proposed restrictive practice

3. is willing and able to liaise with the person recommending the use of the restrictive practice

4. is willing and able to seek further information from the person recommending the use of the restrictive practice, and, if necessary, to test their opinion about the need for and the efficacy and safety of the proposed restrictive practice

5. is willing and able to consult with the care recipient about the use of the proposed restrictive practice and take their views into account.

60. We find each of the children satisfy these criteria.

61. The written statements prepared by the Daughter and the Son for the purpose of these proceedings and their oral evidence reveals that each:

1. has a detailed understanding of the Father’s behaviours of concerns which are said to require the use of chemical restraint; the effect on the Father’s behaviours of the use of quetiapine; the rationale for the use of quetiapine and the alternative strategies proposed under the BSP to modify the Father’s behaviours

2. has a broad understanding of the regulatory framework governing the use of restrictive practices, and in particular the requirement that they be used as a last resort

3. are prepared to liaise with Dr Bitossi and the staff at the care facility about the use of quetiapine

4. has the capacity to critically evaluate information provided about any proposed restrictive practice

5. possess the skills and personal attributes which enable them to challenge opinions given about the use of restrictive practices and, if necessary, to seek out alternative opinions.

Would it better give effect to the section 4 principles to make a guardianship order and to appoint the Daughter and the Son as guardians for the Father?

62. An alternative to confirming the 2011 EGA and adding a restrictive practices function would be to deal with the review as an application for a guardianship order, to make such order, and to appoint the children as the Father’s guardians with a restrictive practices function. In addition, if considered appropriate, the functions conferred under the 2011 EGA could be conferred under the guardianship order. To date, that has been the approach generally taken by the Guardianship Division in dealing with applications such as that made by the Daughter. If followed in this case, the approach would result in the 2011 EGA being suspended for the duration of the term of the guardianship order: Guardianship Act, s 6(I).

63. The only practical difference between a guardianship order with a restrictive practices function and an enduring guardianship appointment with a restrictive practices function is that the former must be reviewed by the Tribunal. An initial guardianship order must be reviewed by the Tribunal within 12 months of that order being made, and thereafter up to every three years: Guardianship Act, s 18(1). Where, as here, the person the subject of the order has permanent disabilities and is unlikely to become capable of managing their person, and there is a need for an order of longer duration, the Tribunal has a discretion to extend the period of review to up to three years for an initial order, and up to five years for a renewed order: Guardianship Act, s 18(1A). There is no mechanism under the Guardianship Act to enable the Tribunal to automatically review enduring guardianship appointments, including those which have been confirmed and varied by the Tribunal. However, there is a mechanism which enables review of such appointments on the application of the appointor, or any person with a genuine concern for the appointor: Guardianship Act, 6J.

62. The rationale for the approach adopted by the Guardianship Division to date of treating applications such as that made by the Daughter as an application for a guardianship order, is said to be that such approach gives paramount consideration by the guardian to the welfare and interests of the subject person, because it enables the exercise of the restrictive practices function to be reviewed. A review enables an assessment to be made about whether that function is being exercised by the enduring guardian in a manner which conforms with the section 4 principles. Given the very significant restriction on the subject person’s freedom of decision-making and action, review of the exercise of the restrictive practice function is said to be desirable. The children urged the Tribunal to amend the EGA rather than to make a guardianship order, in part because that obviated the need to participate in future review hearings. Ms Reed supported that request.

63. While a powerful argument for treating the application made by the Daughter as an application for a guardianship order, in the circumstances of this case we have decided not to adopt that approach. Instead, we have decided to exercise the discretion to confirm the 2011 EGA to include a restrictive practices function. That approach has the advantage of preserving the 2011 EGA and arguably better reflects the Father’s wishes. In reaching that decision we have placed significant weight on the demonstrated willingness and ability of the children to exercise the functions conferred under the 2011 EGA in a manner which conforms with the section 4 principles of the Guardianship Act. In addition, we note that while not authorised to do so under the 2011 EGA, for about 10 months the children have been acting as the Father’s restrictive practices substitute decision maker on decisions about the use of the chemical restraint, quetiapine, to manage the Father’s behaviour. The evidence demonstrates that in making those decisions the children have been conscientious, thoughtful and given paramount consideration to the welfare and interests of the Father. They have done so in a manner which conforms with the section 4 principles of the Guardianship Act. We are satisfied that if given a restrictive practice function the children are likely to discharge that function in a manner which conforms with the section 4 principles and gives paramount consideration to the welfare and interest of the Father. In those circumstances no useful purpose would be served by making and reviewing a guardianship order.

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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: 25 October 2023