WXB

[2018] NSWCATGD 39

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

WXB [2018] NSWCATGD 39

Hearing dates:

21 September 2018

Date of orders:

21 September 2018

Decision date:

21 September 2018

Jurisdiction:

Guardianship Division

Before:

B L Hughes, Senior Member (Legal),
L Porter, General Member (Community)

Decision:

The application for medical consent is dismissed after hearing.

  

The guardianship order for WXB made on 28 September 2015 has been reviewed. The order now is as follows:

 

1. The Public Guardian is appointed as the guardian.

 

2. This is a continuing guardianship order for a period
of three years from 21 September 2018.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Health care

 

To decide what health care WXB may receive.

 

b) Medical/Dental consent

 

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

 

c) Services

 

To make decisions about services to be provided to WXB.

 

d) Restrictive Practices

 

To make decisions about the following restrictive practices:

 

physical restraint by holding the bandanas around WXB’s wrists.

 

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian may only consent to:

 

i) Restriction of WXB’s freedom of movement;

 to address and prevent WXB engaging in self-injurious behaviours within the context of the implementation/development of a comprehensive positive behaviour intervention and support program.

Catchwords:

GUARDIANSHIP – requested review of guardianship order – appointment of Public Guardian as guardian – order renewed and varied

  RESTRICTIVE PRACTICES – nature of restrictive practices – mechanical restraint

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2), 36(1)(b)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

013: Review of Guardianship Order

 

WXB (the person)
Public Guardian (appointed guardian)

 

014: Consent to Medical or Dental Treatment

  WXB (the person)
SZT (applicant)

Representation:

Nil

File Number(s):

NCAT 1996/00065725

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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER AND REQUEST FOR CONSENT TO MEDICAL TREATMENT

Background

1. WXB is a 47-year-old woman who lives in a group home managed by a disability service provider in Northeast Sydney. WXB is reported to have autism spectrum disorder and severe intellectual disability. She is non-verbal and has a history of self-harm.

2. WXB has been under guardianship since 1996. Most recently, on 28 September 2015, the Tribunal appointed the Public Guardian for a period of three years to make decisions about her health care, medical and dental treatment, her access to services and restrictive practices.

3. WXB’s financial affairs are managed by the NSW Trustee and Guardian.

4. On 13 September 2018, the Tribunal received an application for consent to medical treatment from SZT, Coordinator of a group home of the disability service provider. The Tribunal was told that the application was lodged in the event that the guardianship order was lapsed on review.

5. The Tribunal determined to conduct the statutory end of term review of the guardianship order of 28 September 2015 before proceeding to hear the application for medical consent.

The hearing

6. 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.]

REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

7. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

8. The questions to be considered by the Tribunal are:

• Is WXB someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is WXB someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

9. Section 14 of the Guardianship Act1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she 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”: s 3(1) of the Guardianship Act. 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: s 3(2) of the Guardianship Act.

10. When the previous order was made, the Tribunal found that as a result of intellectual disability had a disability, WXB was unable to make important life decisions.

11. The Tribunal is satisfied that WXB continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

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

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

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

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

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.

13. 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 Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3) which provides:

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.

14. WXB attended the hearing however as a result of her disabilities was unable to provide a view or participate meaningfully in the hearing. It was evident that she has a strong bond with the support workers who brought her to the hearing and the Tribunal appreciated the opportunity of meeting WXB in person. The Tribunal was told that it was an indication of how much more settled WXB is than in the past that she was able to come to the hearing. WXB has no family or friends who are involved in her life. Her accommodation is permanent and appropriate. There are no accommodation decisions to be made by a guardian.

15. The Tribunal received a copy of WXB’s PRN and regular medications chart, a report from Dr Z dated 7 May 2018 and a Behaviour Support Plan dated 15 January 2018.

16. The Public Guardian provided a report dated 13 August 2018 and Ms Bozkurt of the Public Guardian participated in the hearing. In her report, Ms Bozkurt considered that WXB’s health care and medications are managed by staff at the group home and she has access to relevant health care professionals. A Health Care Plan is in place. Her medication regime is stable. Ms Bozkurt considered that any need for substitute consent could be sought directly from the Guardianship Division pursuant to s 36(1)(b) of the Guardianship Act.

17. Dr Z reported that WXB has severe intellectual disability, severe autism spectrum disorder, a history of post-traumatic stress disorder as a result of a car accident, and severe unipolar major depressive disorder. He said that overall, she continues to do well, however in absolute terms there are significant ongoing difficulties. WXB continues to have about five difficult days per month, which, the Tribunal was told by Ms Y, is linked to her menstrual cycle. When she is having an episode, WXB engages in extreme exacerbations of chronic self-injurious behaviour. She hits herself in the face with a closed fist, often quite severely. The Tribunal observed some of the injuries that WXB has perpetrated upon herself.

18. Dr Z has prescribed WXB major medications for the treatment of her multiple mental disorders, autism spectrum disorder and unipolar major depressive disorder. He has also prescribed PRN medications, which although they have not been used in recent times, will need to remain available indefinitely given her history of very severe self-injurious behaviour when it occurs.

19. Ms X told the Tribunal that it appears that WXB may be experiencing issues with her kidneys and investigations will have to be carried out in this area. WXB is incapable of providing her own consent to medical or dental treatment, and the Tribunal considered that a guardian should be appointed to make decisions about her medical and dental treatment and healthcare given the complexity of her diagnosis.

20. WXB accesses services via the NDIS and the Public Guardian has provided consent to support coordination and WXB’s participation in a day program provided by Sunnyfield as well as a number of other services. WXB accesses behaviour support through the Benevolent Society as well as speech and language therapy. The Public Guardian clarified that in order to review the existing Behaviour Support Plan and the restrictive practices contained in it, a referral would need to be made by the disability service provider to do so and funding sought from the National Disability Insurance Scheme (NDIS). The Public Guardian considered that unless there was a change to the restrictive practices then there may not be a need for these functions to be attached to an order.

21. The current Behaviour Support Plan is due to be reviewed on 15 January 2019. WXB when distressed will hit, pinch or bite herself and staff are to support her by ensuring that she has her favoured items, including her bandannas, handbag and other sensory items. If she is unable to be redirected staff restrain her by sitting next to her and holding her bandanna ends around her wrists onto her lap. If WXB continues to pull against the bandannas in an attempt to hit herself, then staff are to stand behind WXB, place their hands, palms down above the area where her bandannas are tied around her wrists. This is to restrain WXB from moving her arms in an upward direction to hit herself.

22. Ms X and Ms Y said that WXB chooses to wear her bandannas around her wrists every day. Straight after her shower she will go to get them and get staff to put them around her wrists. She likes to have things close to her and held her handbag tight around her wrist at the hearing. The Tribunal was told that new staff in particular regularly have to restrain WXB by holding her bandannas to prevent her from harming herself. WXB finds changes in staff challenging. Her menstrual cycle also impacts her degree of agitation and self-injurious behaviours. These incidents typically occur on a daily basis and involve staff holding the bandanna ends until she settles. About two to three times a week WXB has needs to be physically held down by her bandannas. These incidents are recorded in incident reports.

23. In the past WXB has required seclusion and time out and these restrictive practices have been successfully faded out. It is unlikely that the restraint by the bandannas will be able to be faded out due to the fact that there is always a possibility of new staff and changes to WXB’s routine that she will find challenging.

24. Due to the restrictive nature of the restraint, the Tribunal was satisfied that a guardian should be appointed to make decisions about restrictive practices, namely physical restraint by holding bandannas around her wrists. The Tribunal was satisfied that a services function should be attached to the order to enable the guardian to consider whether to consent to the development and implementation of a behaviour support plan to try to reduce WXB’s self-injurious behaviours. WXB has complex needs and the appointment of a guardian with the services function will enable her quality of life to be enhanced.

25. There were no cultural or linguistic factors for the Tribunal to consider relevant to the circumstances in which WXB finds herself.

26. The Tribunal decided on the basis of all of this evidence that a further guardianship order should be made. The functions to be attached to the order are medical and dental treatment, healthcare, restrictive practices as outlined above and services.

Who should be appointed as the guardian?

27. The Public Guardian was appointed as WXB’s guardian on the last occasion. As there is no private person available to be appointed as guardian, the Tribunal reappointed the Public Guardian.

How long should the order last?

28. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. The Tribunal made the order for a period of three years.

APPLICATION FOR CONSENT TO MEDICAL TREATMENT

29. As the Tribunal appointed the Public Guardian with the decision-making function of medical and dental consent there was no need for the application for medical consent to proceed to hearing. Accordingly, the Tribunal dismissed the application for medical consent of SZT.

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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: 12 February 2019