TZD

[2021] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TZD [2021] NSWCATGD 14

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

Application for consent to medical treatment

The application is dismissed because ENQ has withdrawn the application and the Tribunal consents.

Application for guardianship order

1. A guardianship order is made for TZD.

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

3. This is a continuing guardianship order for a period of 12 months from 16 July 2021.

4. This is a limited guardianship order giving the guardian(s) custody of TZD to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following function:

a) Restrictive Practices

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

Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

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

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

(ii) in accordance with a care and support plan that incorporates:

a) the behaviours that are being addressed;

b) the reasons why the restraints are necessary;

c) the non-pharmacological strategies in place to address the behaviour;

d) provision for review, including by an appropriate medical specialist.

Catchwords:

GUARDIANSHIP – application for a guardianship order – restrictive practices function – use of restraint in aged care – Aged Care Act 1997 (Cth) – Quality of Care Principles 2014 (Cth) – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) – adoption of NDIS definitions to aged care regime – informed consent required for use of restraint – restrictive practices substitute decision maker – chemical restraint – medication used to treat psychotic experiences and control behaviour – private guardian appointed

Legislation Cited:

Aged Care Act 1997 (Cth), ss 54-9, 96-1

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33, 33A(4)(b), 35, 36(1)(b), 37

Guardianship Regulation 2010 (NSW), cl 11(e)

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth)

National Disability Insurance Scheme Act 2013 (Cth), s 9

Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth)

Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth)

Quality of Care Principles 2014 (Cth), Pt 4A, s 4, 5, 15F(1)(e), 15FA(1)(f)(ii), 15G(1)(c).

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

HZC [2019] NSWCATGD 8

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Section 33A(4)(b) of the Act

VZM [2020] NSWCATGD 25

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Consent to Medical or Dental Treatment
TZD (the person)
ENQ (applicant)
DAJ (spouse)

002: Guardianship Application
TZD (the person)
ENQ (applicant)
Public Guardian
DAJ (spouse)

Representation:

Nil

File Number(s):

2021/00133471

Publication restriction:

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

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

Background

1. TZD is 68 years old and lives at an aged care facility to which he was discharged from a public hospital. He is reported to have dementia.

2. On 12 May 2021 the Tribunal received an application from ENQ, a Neurology Registrar at the public hospital, seeking consent to the use of medication for TZD to manage his agitated and unpredictable behaviours associated with Lewy Body Dementia.

3. On 17 May 2021 the Tribunal received an application from ENQ seeking the appointment of a guardian for TZD. She notes that chemical restraint of behaviour was being used to manage TZD in hospital and there would need to be consent for that treatment in an aged care facility to which it was proposed TZD be discharged.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

5. Due to procedures necessitated in response to the COVID-19 pandemic, the Tribunal’s hearings are conducted by telephone and video. This hearing was conducted using both video and telephone conferencing.

Does ENQ have standing to bring the application?

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

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

2. the Public Guardian; or

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

7. We were satisfied that as a medical practitioner treating TZD and as one of the team preparing for his discharge, ENQ had a genuine concern for TZD’s welfare and had standing to bring the application.

What did the Tribunal have to decide?

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

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

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

• Who should be the guardian?

• How long should the order last?

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

9. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

10. The term “social habilitation” is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

11. In her application and oral evidence, ENQ indicated that TZD has been diagnosed with Parkinson’s Disease and Lewy Body Dementia.

12. A social work report dated 11 May 2021 prepared by Ms Z, Senior Social Worker, Neurology Ward of the public hospital, on behalf of the Local Health District in that area, includes the following information:

1. Medical records indicate that:

1. In 2016 TZD was diagnosed with Parkinson’s Disease with cognitive decline, with a differential diagnosis of Lewy Body Dementia. Since then his cognitive and functional capacity had continued to decline.

2. TZD was admitted to hospital on 28 April 2021. His wife, DAJ, expressed concerns about his reduced mobility, increasing care needs and increasing agitation. She reported that in recent months he had increased periods of confusion and disorientation with paranoia, visual hallucinations, and falls.

3. On 21 April 2021, TZD scored 12/30 on the Rowland Universal Dementia Assessment Scale (RUDAS) with a score of only 2/8 on the items testing recall.

4. In hospital TZD had not been able to recall where he was or why he was in hospital and had not been able to state the date. When asked the current date he sometimes replied with his date of birth. His conversation was often rambling and tangential and he had difficulty processing information and following instructions.

5. TZD had become agitated at times including when staff attempted to assist him with personal care. A security special had been placed on the ward to assist to manage his behaviour and medication had been used to control his behaviour.

6. On the ward TZD had needed assistance with personal care and dressing and needed assistance to mobilise. He was a high falls risk as he had attempted to mobilise without adequate assistance.

13. An undated Clinical Nurse Consultant Dementia Delirium Assessment and Person-Centred Behavioural Management Plan includes the following:

1. TZD was exhibiting “sundowning” behaviour resulting in increased anxiety, disorientation and calling out at night.

2. TZD exhibited delusional thoughts regarding his (now adult) children not being adequately cared for and also believed that he had been given too much money and tried to return money to staff. He also became fixated on ideas that appeared to relate to his former employment.

3. TZD had rare, short periods of lucidity where he seemed to understand his circumstances.

4. TZD’s speech was often slurred and garbled and at times was unintelligible. He seemed unaware of his expressive communication difficulties.

5. In the opinion of the Clinical Nurse Consultant, TZD’s dementia was at an advanced stage.

14. With the exception of TZD, the participants and parties to the hearing were in agreement that as result of his dementia he has a cognitive impairment that restricts him from making important lifestyle decisions. TZD did not express a view on this matter.

15. We accepted the evidence of the health and medical practitioners as those of qualified practitioners with a knowledge of TZD and their views were supported by DAJ. On the basis of that evidence we were satisfied that TZD has a cognitive impairment that restricts his ability to manage his person, and to make lifestyle decisions and as a result he requires assistance and some supervision. He is, therefore, a person for whom we could make a guardianship order.

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

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

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

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

3. the importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

17. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

Summary of evidence

18. In her application ENQ indicates that a guardian would be required to consider the use of chemical restraint of TZD’s behaviour and also to consider the possible use of bed rails on his discharge to an aged care facility. During the hearing Ms Z said that bed rails had not been used at the hospital. Ms Y, the Lifestyle Coordinator of the aged care facility, said that the facility does not use bed rails. Accordingly, ENQ indicated that she was not seeking a guardian to consent to the use of bed rails for TZD.

19. ENQ had also indicated that a guardian might need to utilise the assistance of others to effect the transfer of TZD to an aged care facility or to keep him there. However, he had been transferred without incident. During the hearing TZD told us that he was “doing well” at the aged care facility and had no issues with being there. There was no indication that he would attempt to leave the facility. ENQ indicated that she was not seeking consent for a guardian to utilise the assistance of others to implement accommodation decisions.

20. As noted above, ENQ sought the appointment of a guardian to consent to the use of medication, being Quetiapine, on a regular and PRN (as necessary) basis to treat TZD’s agitation. We were provided with TZD’s hospital medication list that includes Quetiapine 12.5mg at night and Quetiapine 12.5mg twice a day if required.

21. ENQ described some examples of agitated behaviour that appeared to be related to the content of delusions and hallucinations experienced by TZD and said that to the extent that the medication was to treat those episodes she believes the treatment would amount to medical treatment of symptoms of psychosis, and consent could be given by TZD’s “person responsible”. However, she was also of the view that at times TZD’s behaviours of concern were not related to psychotic experiences and in those cases the medication would be utilised for the sole purpose of managing his behaviour. Accordingly, she sought the appointment of a guardian to be able to consent to the use of medication for that purpose.

22. The Person-Centred Behavioural Management Plan devised for TZD by a Clinical Nurse Consultant describes behavioural and environmental strategies to be implemented to reduce TZD’s agitation.

23. When asked about his medication, TZD said that he takes one pill, but he did not know what it was for. He said that he is happy to take it and it makes him “feel good”.

Findings concerning use of medication as “medical treatment” under Part 5 of the Guardianship Act

24. In considering whether the proposed use of the medication for TZD was a form of chemical restraint or was being administered as medical treatment to treat an underlying condition, we placed weight on the views of ENQ and accepted her view that the use of the medication should be characterised differently depending on the circumstances of its use.

25. In respect of the use of Quetiapine to treat the symptoms of TZD’s psychosis we took into account the following:

1. Whilst TZD does not object to his medication we were satisfied that when asked about his medication he was unable to indicate its general nature and effect. We were also satisfied that, as he now has advanced dementia that affects his cognitive capacity, he is not able to understand the general nature and effect of the treatment.

2. Section 33 of the Act is to the effect that a person is considered incapable of giving consent to medical treatment if the person is incapable of understanding the general nature and effect of the treatment.

3. Section 35 of the Act prohibits the carrying out of medical or dental treatment without consent. Some exceptions are provided in s 37 of that Act, but those are not relevant here.

4. Section 36(1)(b) of the Act provides that a “person responsible” can consent to the administration of minor or major treatment. Clause 11(e) of the Guardianship Regulation 2010 (NSW) has the effect that the administration of Quetiapine for the purposes of medical treatment is major treatment.

5. Section 33A(4)(b) of the Act indicates that in the absence of guardian appointed to consent to medical treatment, a spouse is considered to be the “person responsible”.

26. Having regard to the matters outlined in the preceding sub-paragraphs we are satisfied that consent to the use of Quetiapine as medical treatment can be provided by DAJ as TZD’s “person responsible”, without the appointment of a guardian.

Findings concerning use of medication as chemical restraint constituting a restrictive practice

27. We also had to consider whether recent changes to the Aged Care Act1997 (Cth) and Quality of Care Principles 2014 (Cth) made under the Aged Care Act have any impact on the way in which we should determine the application seeking the appointment of a guardian with a restrictive practices function.

Regulation of the use of restraint in residential aged care services

28. Prior to considering the use of restraint in aged care facilities, it is useful to consider the matter of HZC [2019] NSWCATGD 8 (“HZC”) in which the Tribunal considered restrictive practices used to manage behaviours of concern of persons in receipt of services under the National Disability Insurance Scheme (NDIS). In that context all registered NDIS providers and behavioural support practitioners must comply with the requirements of the NDIS Quality and Safeguards Commission including those that are outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth) (the “NDIS Rules”).

29. In particular:

1. Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) defines a restrictive practice as:

“any practice or intervention that has the effect of restricting the rights or freedom of movement of the person with disability”

2. The NDIS Rules state that a restrictive practice is a regulated restrictive practice if it is or involves any of the following:

(a)   seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;

(b)    chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition;

(c)    mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;

(d)    physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person;

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

30. In HZC the Tribunal adopted these definitions, noting that whilst the Tribunal is not bound by the Commonwealth legislation applying to the NDIS, it “would be in the best interests of people with whom restrictive practices are being used in NSW, for there to be some consistency in the way definitions are applied throughout the quality and safeguards arena and within the Tribunal” (at [45]).

31. The use of restraint in aged care facilities was considered by the Tribunal in the matter of VZM [2020] NSWCATGD 25 (“VZM”). The Tribunal noted that:

[47]    Whilst there is no statutory definition of restrictive practices and/or physical or chemical restraint under NSW legislation, it has been long recognised in the jurisprudence developed by the Tribunal that the use of restrictive practices for a person who is unable to provide their own informed consent potentially leads to some of the most serious infringement of rights to personal autonomy and freedom of movement. This jurisprudence has also developed to ensure that practices used in relation to a person that would otherwise be unlawful under the common law (such as assault, false imprisonment and detinue) could be utilised in certain specified circumstances if consented to by a guardian with the authority to do so.

32. In VZM the Tribunal considered the Quality of Care Principles 2014 (Cth) (the “Principles”). The Principles were made under s 96-1 of the Aged Care Act, and were amended by the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (Cth) that introduced regulatory requirements in relation to the use of restraints by residential aged care providers. These were further amended on 29 November 2019 by way of the Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019 (Cth). Part 4A of the Principles is headed Behaviour Support and restrictive practices – residential care and certain flexible care

33. At the time that VZM was decided, the Principles categorised the forms of restraint used in aged care facilities as “physical restraint” and “chemical restraint”. These terms were defined in s 4 of the Principles as follows:

restraint means any practice, device or action that interferes with a consumer’s ability to make a decision or restricts a consumer’s free movement.

chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person’s behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.

physical restraint means any restraint other than:

(a)   a chemical restraint; or

(b)     the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.

34. In VZM the Tribunal commented on the different regulatory regimes applying to the aged care and disability sectors in the following terms:

[53]   The experience of this Tribunal and the former Guardianship Tribunal has been that when compared to applications made in relation to the use of restrictive practices in the disability sector in NSW, it has received comparatively few applications for guardianship for people living in residential aged care in NSW and in respect of whom restrictive practices are sought to be used. This does not, of course, mean that such practices have not been utilised, just that for those people who are unable to provide their own informed consent the appointment of a guardian to give or withhold consent to their use has not been sought.

[54]   We note that a complex regulatory landscape now exists by the development at a federal level of the two different schemes created under Pt 4A of the Principles and the NDIS Rules to address the use of restrictive practices and restraint, with different definitions of such practices and different obligations placed on those proposing to utilise the practice.

35. Since the decision in VZM there have been further amendments to the Aged Care Act. That Act now uses the term “restrictive practices” which is defined in s 54-9 of that Act:

(1)    A restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient, and

(2)    Without limiting subsection (1), the Quality of Care Principles may provide that a practice or intervention is a restrictive practice in relation to a care recipient.

36. The Principles have also been amended with the effect that the regulatory regime in aged care now largely adopts the definitions that apply under the NDIS Rules. The amendments to the Principles include provisions that came into effect on 1 July 2021 and other provisions, such as those requiring the development of a Behaviour Support Plan, to come into effect on 1 September 2021.

37. The amendments to the Principles that came into effect on 1 July 2021 include the following:

Division 2 — Restrictive practices

15E  Practices or interventions that are restrictive practices

(1) For the purposes of subsection 54‑9(2) of the Act, each of the following is a restrictive practice in relation to a care recipient:

(a)     chemical restraint;

(b)     environmental restraint;

(c)     mechanical restraint;

(d)     physical restraint;

(e)     seclusion.

(2)     Chemical restraint is 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:

(a)     the treatment of, or to enable treatment of, the care recipient for:

(i)     a diagnosed mental disorder; or

(ii)     a physical illness; or

(iii)     a physical condition; or

(b)     end of life care for the care recipient.

(3)     Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour.

(4)     Mechanical restraint is a practice or intervention that is, or that involves, the use of a device to prevent, restrict or subdue a care recipient’s movement for the primary purpose of influencing the care recipient’s behaviour, but does not include the use of a device for therapeutic or non‑behavioural purposes in relation to the care recipient.

(5)     Physical restraint is a practice or intervention that:

(a)     is or involves the use of physical force to prevent, restrict or subdue movement of a care recipient’s body, or part of a care recipient’s body, for the primary purpose of influencing the care recipient’s behaviour; but

(b)     does not include the use of a hands‑on technique in a reflexive way to guide or redirect the care recipient away from potential harm or injury if it is consistent with what could reasonably be considered to be the exercise of care towards the care recipient.

(6)     Seclusion is a practice or intervention that is, or that involves, the solitary confinement of a care recipient in a room or a physical space at any hour of the day or night where:

(a)     voluntary exit is prevented or not facilitated; or

(b)     it is implied that voluntary exit is not permitted;

for the primary purpose of influencing the care recipient’s behaviour.

38. Whilst also being largely consistent with the definitions used under the NDIS Rules, these new definitions also provide greater specificity about the categorisation of restrictive practices that may be used in relation to a care recipient. In our view this is important from the point of accuracy and consistency when considering the prospect of restrictions being imposed on a person’s rights and freedoms. Although for the reasons previously outlined we did not ultimately have before us an application seeking the appointment of a guardian to give or withhold consent to the use of bedrails, had we in fact had that application, it is likely that under the new definitions we would have considered their use through the prism of mechanical restraint. This may be compared with the manner in which the Tribunal in VZM considered their use, that is, as a form of “physical restraint” under the Principles as they then existed, as that was the only form of restraint contemplated under the Principles at that time apart from chemical restraint.

Consent to the use of restrictive practices

39. Changes have also been made under the Principles to the provisions dealing with the identity of the person from whom consent should be sought for the use of restrictive practices if the care recipient is unable to give their own informed consent to the use of the practice.

40. Previously, an approved provider could seek consent to the use of physical restraints from a care recipient’s “consumer representative” under s 15F(1)(e) of the Principles or, in the case of chemical restraint, the approved provider was required to inform the consumer’s representative of the use of chemical restraint if it was practicable to do so: the Principles, s 15G(1)(c).

41. The meaning of “representative” of a consumer was set out in s 5 of the Principles as they were previously, as follows:

5 Meaning of representative

(1)    Representative, of a consumer, means:

(a)    a person nominated by the consumer as a person to be told about matters affecting the consumer; or

(b)    a person:

(i)   who nominates themselves as a person to be told about matters affecting a consumer; and

(ii)    who the relevant organisation is satisfied has a connection with the consumer and is concerned for the safety, health and well‑being of the consumer. [Emphasis added]

(2)    Without limiting subparagraph (1)(b)(ii), a person has a connection with a consumer if:

(a)   the person is a partner, close relation or other relative of the consumer; or

(b)    the person holds an enduring power of attorney given by the consumer; or

(c)   the person has been appointed by a State or Territory guardianship board (however described) to deal with the consumer’s affairs; or

(d)   the person represents the consumer in dealings with the organisation.

(3)   Nothing in this section is intended to affect the powers of a substitute decision‑maker appointed for a person under a law of a State or Territory.

42. As noted in VZM (at [60(4)]) in relation to the consumer representative provisions:

…whilst a provider may comply with the Principles by seeking the consent of a “consumer’s representative” in order to meet its reporting obligations under the Aged Care Act in relation to the use of physical restraint, only a guardian appointed pursuant to the Guardianship Act with the appropriate decision making authority will have the legal authority to consent to the restraint if the person is incapable of giving their own consent.

43. Section 15FA(1)(f)(ii) of the amended Principles now reflects this legal position and provides that where a consumer is unable to provide consent to the use of a restrictive practice, consent must be provided by a restrictive practices substitute decision maker. Section 4 of the Principles defines a restrictive practices substitute decision maker as:

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;

44. As noted in VZM at [56] a guardian’s authority makes lawful that which would otherwise be unlawful under the common law principles. The appointment also ensures that a person’s rights are protected.

Applying the Regulatory framework to TZD’s circumstances

Findings concerning use of Quetiapine as chemical restraint

45. The definition of chemical restraint in the amended Principles includes the use of medication or a chemical substance for the primary purpose of influencing a person’s behaviour but does not include treatment for a diagnosed mental disorder. In determining that TZD’s treatment can amount to chemical restraint we placed weight on the view of ENQ that whilst the treatment is sometimes used to treat psychotic experiences resulting from TZD’s diagnosed condition of Lewy Body Dementia, at other times, its primary purpose is behaviour control. We were satisfied that on those occasions the use of the medication is a form of chemical restraint.

46. We were satisfied that due to the extent and nature of his cognitive impairment, TZD is not able to consent to the use of the medication to control his behaviour and we were satisfied that there is a need for substitute consent to the use of chemical restraint, and consistently with the reasoning in VZM, it is appropriate to appoint a guardian to provide that consent. Whilst this Tribunal is not bound by the Aged Care Act, appointing a guardian to consider consenting to the use of chemical restraint is also consistent with the Principles as amended, and in our view it is in the best interests of TZD that the aged care facility abides by those Principles

47. As indicated above, the Principles include a number of conditions around the use of chemical restraint. We were of the view that these conditions provide important safeguards to TZD’s welfare and best interests and that, conditions consistent with those set out in the Principles should be imposed on the ability of the guardian to consent to chemical restraint.

48. There was no evidence to indicate that the appointment of a guardian would adversely affect TZD’s family relationships and no evidence of any particular linguistic or cultural matters that would be adversely affected by making a guardianship order.

Who should be the guardian?

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

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

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

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

50. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

51. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

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

53. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

54. DAJ proposed that she be appointed as TZD’s guardian. When we asked TZD who he would choose to make decisions for him, he nominated DAJ.

55. DAJ told us that since TZD had moved to the aged care facility she had been telephoned on two nights to assist to calm him and to consent to medication. She said that sometimes she is able to calm him by talking to him but there has been a need to use medication to reduce his agitation.

56. We were satisfied that DAJ understands TZD’s circumstances and is willing and able to liaise appropriately with the aged care facility and health and medical practitioners to make decisions that are in his best interests about the use of the chemical restraint. There was no indication of any conflict the interests between DAJ and TZD.

57. We were satisfied that DAJ is an appropriate person to be appointed as TZD’s guardian to make decisions about chemical restraint.

How long should the order last?

58. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made the order for 12 months because we consider that TZD’s condition and needs are likely to fluctuate and over time the use of the chemical restraint can be monitored. It will be appropriate at a review of the order in 12 months to determine if the chemical restraint remains necessary.

APPLICATION FOR CONSENT TO MEDICAL TREATMENT

59. ENQ sought to withdraw her application for consent to medical treatment as DAJ was able to consent to the medical treatment as the person responsible and to the chemical restraint as the guardian. We consented to the withdrawal of the application, which we dismissed, on the basis that there was no need for the Tribunal to consent to the treatment.

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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: 01 September 2021